HomeMy WebLinkAbout2006-07-18; City Council; 18659; 9212 Report on Citizen Initiative for ElectionCITY OF CARLSBAD - AGENDA BILL 10
AB# 18,659
MTG. 7/18/06
DEPT. CA
Election Code Section 9212 Report on
Citizen Initiative Scheduled for
November 2006 Municipal Election
DEPT. HEABO^^
CITY ATTY. r^5>
CITYMGR. <^
RECOMMENDED ACTION:
Accept the Elections Code Section 9212 Report on the "Save the Strawberry and Flower
Growing Fields Act of 2006" Initiative and place the Initiative on the ballot for the November,
2006 general election.
ITEM EXPLANATION:
On June 20, 2006, the City Council ordered the preparation of a report, under Section 9212 of
the Elections Code, to analyze various impacts of the Initiative entitled "Save the Strawberry
and Flower Growing Fields Act of 2006." The City retained the services of the law firm of
McDougal, Love, Eckis, Smith, Boehmer and Foley and the economic consulting firm of
Rosenow-Spevacek Group to assist in the preparation of the Report. The Report is attached as
Exhibit 1 to this Agenda Bill.
The Report analyzes legal, procedural, land use, fiscal and other impacts associated with the
Initiative should it be approved. The conclusion of the Report is that these impacts are
substantial in nature and they could have significant fiscal and administrative implications for
the City. Therefore, the Report recommends that the City Council not adopt the Initiative by
Ordinance at this time and, instead, place it on the ballot for the November election and let the
voters decide whether to approve it.
FISCAL IMPACT:
There is no fiscal impact to the City of accepting the Section 9212 Report. Fiscal impacts
associated with the Initiative and its implementation are contained in the 9212 Report.
ENVIRONMENTAL IMPACT:
The Section 9212 Report does not qualify as a project under Section 15378 of the California
Environmental Quality Act (CEQA) and, therefore, environmental review is not required. CEQA
specifically exempts citizen-sponsored initiatives from environmental review.
EXHIBITS:
1. Elections Code Section 9212 Report
DEPARTMENT CONTACT: Ron Ball, 760-434-2891 rball@ci.carlsbad.ca.us
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED O
DENIED D
CONTINUED D
WITHDRAWN D
AMENDED D
CONTINUED TO DATE SPECIFIC O
CONTINUED TO DATE UNKNOWN D
RETURNED TO STAFF P
OTHER - SEE MINUTES D
Council Accepted the Report.
ELECTIONS CODE SECTION 9212 REPORT
ANALYSIS OF THE SAVE THE STRAWBERRY AND
FLOWER GROWING FIELDS ACT OF 2006
The purpose of this report is to respond to the Council's request to study various impacts of the
"Save the Strawberry and Flower Growing Fields Act of 2006" (hereinafter referred to as
"Strawberry Fields Initiative" or "Initiative"). This 9212 report was ordered by the City Council
at its meeting of June 20, 2006.' This report must be submitted to the Council no later than 30
days after the election official certifies to the legislative body the sufficiency of the petition.
This certification was accomplished on June 20l .
This Report will follow the format set out in Section 9212. There are seven specific
requirements for a 9212 Report and an optional category for additional information requested by
the City Council. In its referral to City staff, the Council only sought information required to be
included in the 9212 Report and did not seek any other information. This Report will include
attachments from various sources. The primary source will be a report by the Rosenow-
Spevacek Group ("RSG") regarding various fiscal impacts. It also discusses certain legal
impacts of the Initiative that were discussed by the Council-appointed Citizen's Committee.
1 Election Code 9212 states as follows: 9212. (a) During the circulation of the petition, or before taking either action described in subdivisions (a)
and (b) of Section 9214, or Section 9215, the legislative body may refer the proposed Initiative Initiative to any city agency or agencies fora
report on any or all of the following: (1) Its fiscal impact. (2) Its effect on the internal consistency of the city's general and specific plans,
including the housing element, the consistency between planning and zoning, and the limitations on city actions under Section 65008 of the
Government Code and Chapters 4.2 (commencing with Section 65913) and 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the
Government Code. (3) Its effect on the use of land, the impact on the availability and location of housing, and the ability of the city to meet its
regional housing needs. (4) Its impact on funding for infrastructure of all types, including, but not limited to, transportation, schools, parks, and
open space. The report may also discuss whether the Initiative would be likely to result in increased infrastructure costs or savings, including the
costs of infrastructure maintenance, to current residents and businesses. (5) Its impact on the community's ability to attract and retain business
and employment. (6) Its impact on the uses of vacant parcels of land (7) Its impact on agricultural lands, open space, traffic congestion, existing
business districts, and developed areas designated for revitalization. (8) Any other matters the legislative body requests to be in the report, (b)
The report shall be presented to the legislative body within the time prescribed by the legislative body, but no later than 30 days after the elections
official certifies to the legislative body the sufficiency of the petition.
Election Code Section 9212 Report
July 5, 2006
Page 2 of 16
This report does not discuss the City's Initiative or any other Initiative currently being
contemplated or circulated. The Initiative under consideration is attached to this report as
Attachment"!".
I. Procedural Initiative Concerns
A. General Initiative Issues
The Initiative power for cities is found in the Constitution. (Cal. Const. Art. II, Section
11.) It is a power reserved by the people rather than one granted by the Constitution. This
reserved power places an Initiative's proponents on an equal footing with the legislative body
(City Council). With this right comes responsibility. Initiatives are subject to the same rules and
conditions applicable to city councils when they adopt laws, excluding certain public hearing and
procedural requirements. As a city council must comply with statutory requirements, a citizen-
sponsored Initiative must also generally meet statutory standards. (Creighton v. Reviczky (1985)
171 Cal. App. 3d 1225.)
Because this Initiative regulates property in the Coastal zone, it is required to be
consistent with the California Coastal Act. (Public Resources Code Section 30000 et. seq.) Each
coastal city must prepare a local coastal program. The General Plan sections being amended are
part of the Land Use Plan ("LUP") of the Carlsbad Local Coastal Program ("LCP"). (Public
Resources Code Section 30511.) These portions of the LUP may be subject to the Initiative
process. (DeVita v. County ofNapa (1995) 9 cal.4th 763; Yost v. Thomas (1984) 36 Cal.3d 561.)
However, as an amendment to the LCP and its implementing ordinances (LUP), the amendment
takes effect only upon certification by the Coastal Commission. (Public Resources Code Section
30514(a); Yost v. Thomas (1984) 36 Cal.3d 561; 70 Cal. Op. Atty. Gen. 220 (1987).)
B. Issues Specific to the Strawberry Fields Initiative
Since this Initiative is primarily a General Plan Amendment, it must follow general rules
applicable to Land Use Initiatives. Land Use Initiatives are subject to certain statutory and
judicially interpreted rules of construction. They must be:
1. Consistent with the General Plan;
2. If they amend the General Plan, they must not create an internal inconsistency within
the various elements of the General Plan;
3. They must not preempt State regulatory authority held by the Coastal Commission,
Public Utilities Commission, California Energy Commission or other applicable state
bodies2;
2 The State Agencies with regulatory authority would include the California Coastal Commission (Coastal Act),
California Energy Commission (Power Plant Siting and Regulatory Issues), Public Utilities Commission (Utility
Company regulations, including use of right-of-ways), Department of Pesticide Regulation (Agricultural use of
Pesticides), Department of Fish & Game (Plant and wildlife issues) and the San Diego Regional Water Quality
Control Board (Stormwater runoff and pollution control). Other agencies may have regulatory authority, but these
Agencies are the ones that would be the most directly involved.
Election Code Section 9212 Report
July 5, 2006
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4. They cannot direct future legislative discretion of the City Council; and
5. They must comply with many of the same rules governing City Council except basic
procedural rules applicable only in a legislative setting.
This Initiative can only be implemented to the extent they meet the requirements listed
above.
C. Analysis of Procedural Sections of the Strawberry Fields Initiative
This office has reviewed various provisions of the Strawberry Fields Initiative that has
qualified for the ballot. This Initiative contains many of the legal issues common to typical Land
Use Initiative.
1. Effective Date of the Strawberry Fields Initiative
Under Section 4 of the Strawberry Fields Initiative, the effective date is established as
January 1 of the year following adoption by the voters. Under 9217, the effective date of an
Initiative is ten days after the City Council certifies the result of the election. Section 4 of the
Initiative states as follows:
If a majority of the voters voting on a proposed ordinance vote in its
favor, the ordinance shall become a valid and binding ordinance of the
city. The ordinance shall be considered as adopted upon the date that
the vote is declared by the legislative body, and shall go into effect 10
days after that date. No ordinance that is either proposed by Initiative
petition and adopted by the vote of the legislative body of the city
without submission to the voters, or adopted by the voters, shall be
repealed or amended except by a vote of the people, unless provision
is otherwise made in the original ordinance.
The effective date of the Ordinance conflicts with the effective date for local
municipal ballot Initiatives established by the Legislature. The date listed in the elections code
would control. In addition to establishing a general effective date, the Initiative also attempts to
be applied retroactively to December 19, 2005.
This retroactive provision has two legal impacts. First, it attempts to prohibit any
land use amendment after December 19, 2005. It also directs the City to amend the General Plan
and related plans and ordinances to make them consistent with this Initiative.
The retroactive nature of this Initiative creates legal issues that will have to be
considered by the City Council if the voters approve it. The retroactive provisions may affect
vested rights or invalidate previously adopted Council approvals. This issue is included in this
report to better inform the Council and the Public prior to either adoption by the Council or
placement on the ballot to give the landowners and the public an understanding of the impact of
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July 5, 2006
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the Initiative on land use approvals that are or will be approved between December 19, 2005 and
the potential effective date of the Initiative.
2. Council Amendments in the Strawberry Fields Initiative
Under Section Five, the Strawberry Fields Initiative states as follows:
Permits amendment of this Initiative by the City Council without a
vote of the people in certain circumstances to comply with any state
mandated programs, that results in a violation of the Constitutional
Rights of any person or entity or to disturb a vested right under state or
local law
The City Council can "amend" the Initiative for three reasons; "state mandates,"
"deprivation of Constitutional rights" and to preserve "vested rights". The amendment scenario
will more than likely come up on a project-by-project basis where application of the Initiative
violates one of these conditions.
a. State Mandate Issues.
The "state mandate" issue will require monitoring of two primary areas of
regulation, housing law and environmental law. The State is currently in the midst of a housing
crisis and legislation to address this issue is a regular issue in Sacramento. The impacts of fair
share housing laws and possible expansion of developer-driven incentive programs are the most
likely future legislative impacts that may affect this Initiative's goal of a permanent agricultural
zone and the prohibition of housing in this area.
b. Constitutional Issues Requiring Amendments.
The Strawberry Fields Initiative allows Council amendments to prevent
deprivations of Constitutional rights. These issues usually come up on an ad hoc basis with the
filing of a meaningful application for a development permit. (MacDonald, Sommer & Prates v.
County ofYolo (1986) 477 U.S. 340, 348; Williamson County v. Hamilton Bank (1985) 473 U.S.
172, 186, 190 n.ll; Southern Pacific Transportation Company v. City of Los Angeles (9th Cir.
1990) 922 F.2d 498; Shelter Creek Development Corp. v. City ofOxnard(9l* Cir. 1988) 838 F2d
375, 377; Herrington v. Sonoma County (9th Cir. 1987) 834 F.2d 1288, 1494.) The City Council
will be required to make a determination whether a "taking" has occurred under the Fifth
Amendment to the United States Constitution and under the California Constitution if it denies
the project proposal.
The standard that the courts use is not easily transferred to a public hearing setting
before the City Council. It is likely that the main argument for any non-agricultural proposal
will be that the property values have diminished to such an extent that there is no longer a
5
Election Code Section 9212 Report
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reasonable use left for the property without the development proposal. The three factors that the
courts generally look at on a case-by-case basis are:
1. The economic impact of the regulation;
2. The owners' reasonable investment backed expectations; and
3. The character of the government action.
Of these three factors, economic impact is the most important. (Lucas v. South
Carolina Coastal Council (1992) 505 U.S. 1003, 1015, 1027; Keystone Bituminous Coal Ass'n.
v. DeBenedictis (1987) 480 U.S. 470, 485.) In Keystone, the Court looked at the value that was
left after the regulation.
The Strawberry Fields Initiative leaves the decision of whether a Constitutional
deprivation occurs to the City Council. The Council would have to expand its normal level of
land use review to include a review of economic factors. In addition to reviewing the wisdom of
the development from a public policy perspective, the City Council would have to determine
whether the Initiative deprives the landowner of "economically viable use."
The City Council would need to do an economic analysis of the proposal to
determine "economic viability." This would necessitate the hiring of experts to assist staff in
evaluating a proposal and the impact of the Initiative on the parcel's remaining viability if the
proposal is rejected. This would turn the City Council into a quasi-judicial body weighing
evidence of a Constitutional deprivation. Staff information provided to the Council at the
hearing regarding financial factors would be absolutely crucial to building a record regardless of
the result.
The City Council will have to weigh evidence, as a Court would normally do, to
determine if the Constitutional standard is met. If the City Council approves the development
proposal, a citizen's suit to overturn the decision would, if successful, possibly result in the
award of attorney's fees. (Cal. Code of Civil Procedure Section 1021.5.) If the landowner
succeeds in overturning a denial of the proposal, the landowner could receive attorney's fees and
damages for the loss in value. (42 United States Code Section 1988; Agins v. City ofTiburon
(1980) 447 U.S. 225; Penn. Cent. Tramp. Co. v. New York City (1978) 438 U.S. 104.}
The City Council may wish to consider several options to determine how to
handle these issues, assuming the Initiative is approved. One step may be to set up a special
public hearing process to take into account the technical factors that need to be considered. This
process could include the adoption of an ordinance that sets up a procedure by which the Council
would hear the matter. Testimony could be taken from experts for the landowner, city staff and
any other interested group prior to general public testimony. Specific findings could be
established that mirror the Constitutional standards and the Council could set financial thresholds
ahead of time (i.e. a range of the level of diminution in value required to allow development for
non-agricultural enterprises) to give all parties foreknowledge of the standards they would have
to meet. The Council may also want to consider hiring a Special Master (i.e. a retired federal
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July 5, 2006
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judge) to make a recommendation to the Council after conducting an investigation on any
application.
c. Vested Rights
The "vested rights" exception under state or local law would entail the City
Council implementing the common law and statutory standards regarding the application of new
rules. This provision would implement two state "vested rights" laws, vesting tentative
subdivision maps (Government Code Sections 66498.1-66498.9) and development agreements
Government Code Sections 65864-65869). There are also common law rules regarding "vested
rights." (Avco Community Developers, Inc. v. South Coast Reg 7. Comm. (1976) 17 Cal.3d 785,
791.) The common law rules require the landowner to proceed with a project where they have
"performed substantial work and incurred substantial liabilities in good faith reliance" on a
validly issued permit. (Id.)
B. Federal Voting Rights Issues
The Strawberry Fields Initiative has only been circulated in the English language. This
raises questions about the validity of the Initiative under the Federal Voting Rights Act of 1965.
(42 United States Code Sections 1973 et. seq.) Currently, the County of San Diego is subject to
a Consent Decree and a voluntary agreement, which imposes certain ballot language
requirements within the County. This includes a Spanish language requirement on "voting
materials." There are two questions that need to be answered. First, is this requirement
applicable to the City of Carlsbad? Second, does it preclude the circulation of a local citizen's
Initiative?
Under regulations adopted by the United States Department of Justice, the coverage of
the provisions of the Voting Rights Act extend to Cities within a County subject to Voting Rights
requirements. Where a political subdivision (e.g., a county) is determined to be subject to certain
sections in the Act, all political units that hold elections within that political subdivision
(e.g., cities, school districts) are subject to the same requirements as the political subdivision.
(28 Code of Federal Regulations Chapter 1, Part 55.9 (July 1, 1999 Edition))
This section would seem to require application of the Voting Rights Spanish language
provisions to the City through the County. Under a recent decision, the County Registrar of
voters advised Cities in San Diego County of their potential obligations under the Voting Rights
Act. Once this issue came to the attention of the Carlsbad City Attorney, the concern was passed
along to the circulators of the first Initiative during its circulation period.
This issue arose based on a decision of a three-judge panel of the Federal Ninth Circuit
Court of Appeals. (Padilla v. Lever (9th Cir. 2005) 429 F.3d 910, withdrawn No. 03-56259,
April 28, 2006.) This decision, subsequently withdrawn, applied a translation requirement to the
circulation of a recall petition. The recall petition was considered a "voting material" subject to
the Voting Rights Act translation requirements. Since recall petitions do not require City review
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prior to circulation as an Initiative petition does, the application of the Padilla decision would
certainly follow. (9203.)
With the withdrawal of the Padilla opinion, the Ninth Circuit will hear the issue en bane,
before a full panel of judges. Until a decision is reached, the law is in a state of flux. Case law
from other Federal Judicial Circuits sheds some light on the subject, but does not definitively
answer the question of the application to this Initiative.
The 10l and 111 Federal Circuit Courts have both ruled that "other voting materials or
information relating to the electoral process" does not include Initiative petitions. (42 United
States Code Section 1973aa-la(c) (Section 203); Montero v. Meyer (10th Cir. 1988) 861 F.2d
603; Delgado v. Smith (11th Cir. 1988) 861 F.2d 1489.) Ultimately, the Ninth Circuit will decide
if the language of Section 203 of the Voting Rights Acts extends to this Initiative. When the en
bane panel issues its decision, it may give some guidance to application of this requirement for
the jurisdictions within the Ninth Circuit.
II. Fiscal Impact
The City has retained RSG to study the fiscal impact analysis of the Initiative. This analysis is
attached to this Report as Attachment 2. Overall, the Report focuses on those issues which can
be quantified given the time allotted to perform a comprehensive study of this magnitude.
One of the main problems of this analysis is accumulating data to determine the long-term fiscal
implications of the permanent placement of the properties in question into open space and coastal
agricultural lands zoning. For the 45-acre parcel, referenced herein, that is now designated
travel/recreational commercial, the Report is able to do a more traditional analysis of economic
impact of this change in regulation. Much of the permanent agricultural designations are harder
to quantify. Much of the analysis is dependant upon the takings analysis listed in Section I
C.(2)(b) listed above. The City Council will have to make an ad hoc determination basis in the
same manner as a court would make such a determination in an inverse condemnation case.
III. Land Use Implications
Currently, the General Plan intends to have a natural urbanization process take place. As an
example, the Land Use Element discusses the agricultural transition as follows:
5. Agriculture. Agriculture is an important resource in Carlsbad. The City's
agricultural policies are intended to support agricultural activities while
planning for the future transition of the land to more urban uses consistent with
the policies of the General Plan and the Carlsbad Local Coastal Program
(LCP).
The City's LCP protects agricultural lands from the premature conversion to
more urban land uses by establishing programs which require mitigation for
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conversion of agricultural property to urban uses. It also has established
methods to benefit agriculture in the community by providing financial
assistance through cash programs.
While the City encourages agriculture, it recognizes the potential problems
associated with agricultural land use. For example, to prevent the destruction
of sensitive wild and archeological resources, clearing and grubbing of natural
areas for agriculture requires a permit and environmental review. Also, the
City encourages conservation techniques in agricultural activities to reduce soil
erosion and water usage. (Carlsbad General Plan, Land Use Element, II(D)(5),
Amended September 13, 2005.)
The Land Use Plans of the City, within the Coastal Zone, must be consistent with the Coastal
Act. The Coastal Act includes a priority for visitor-serving uses close to the coast. (Public
Resources Code Section 30255.) This requirement states as follows:
Coastal-dependent developments shall have priority over other
developments on or near the shoreline. Except as provided elsewhere in
this division, coastal-dependent developments shall not be sited in a
wetland. When appropriate, coastal-related developments should be
accommodated within reasonable proximity to the coastal-dependent uses
they support.
Without Coastal Commission approval, the portions of an Initiative inconsistent with the LCP
will not take effect. The Commission could prevent implementation of those portions of the
covered properties that are inconsistent with the LCP/LUP. The Initiative does not amend the
Carlsbad Local Coastal Program.
A. Major Land Use Implications of Proposed Initiative
1. Establishes agriculture as a more long-term, permanent land use in the city rather than
an interim, temporary use.
2. Creates a new category of agricultural use entitled "coastal agriculture" and identifies
the strawberry and flower fields areas of the city as part of this category.
3. Puts the burden on the city to ensure that these areas remain in agricultural
production. This implication is addressed in greater detail in the RSG fiscal impact
analysis attached to this Report.
4. Identifies these areas as Category 1 priority open space uses.
5. Changes the land use designation of the 45-acre portion of the area located at the
northeast corner of 1-5 and Cannon Road from Travel/Recreation (TR) Commercial to
Open Space (OS) and identifies it as part of the coastal agriculture land use category.
°(
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B. Property Descriptions and Maps Included in the Proposed Initiative
The proposed Initiative includes property descriptions and maps which contain some
inconsistencies. These inconsistencies include the following:
1. The City's general plan maps that were included in the Initiative are not
assessor-parcel based. The description of assessor parcels in the Initiative does not
accurately correspond with all the open space boundaries shown on the maps
contained in the Initiative. Refer to GIS Map #1, Attachment "3" (All GIS Maps
referred to herein are included in Attachment "3").
2. GIS Map #2 more accurately reflects the maps contained in the Initiative and the
boundaries of open space as shown on the city's official copy of the General Plan
Land Use and Open Space Maps.
3. Exhibit D map in the Initiative shows the boundaries of the proposed Open Space
Coastal Agriculture and contains properties that ares not part of any of the assessors
parcels listed in the Initiative. The property is part of Assessor's Parcel #208-020-44
which Kelly Ranch deeded to the State of California Department of Fish and Game.
The other property in question is Assessor's Parcel No. 208-186-05 which is occupied
by the Agua Hedionda Lagoon Foundation's Nature Center. Exhibit D map also
excludes/does not show some open space property that is part of one of the assessor
parcels described in the Initiative (Assessor's Parcel #211-010-31). It is not known
whether the intent of the Initiative wa to include or not include these properties, and
whether it is the intent of the Initiative to promote agricultural use on these properties.
Refer to GIS Map#2.
4. Section 3.4 of the Initiative incorrectly refers to Sections 3.6 and 3.11 of the Initiative
as where the assessor parcels affected by the Initiative are identified. The correct
sections are Sections 3.8 and 3.13. This mistake is made again in Section 3.14 of the
Initiative.
5. Two of the assessor parcels identified in the Initiative (portions of Assessor's Parcels
#211-01-24 and 31) and property shown on the exhibit maps contain areas that are
identified in the city's Habitat Management Plan as hardline preserve areas which are
required to be conserved in their natural state. It is not known whether the intent of
the Initiative is to promote agricultural uses in these natural habitat areas.
Although these map and property description inconsistencies are not considered "fatal
flaws", they will lead to some confusion to the public and implementing problems for the City if
the proposed Initiative is approved. Also attached to this Report are GIS Maps #3 and #4
(Attachment "3"), that overlay the boundaries of the maps contained in the Initiative on the city's
Zoning Map and the Local Coastal Plan Land Use Map.
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C. Existing General Plan, Local Coastal Plan Land Use and Zoning Designations
The existing General Plan, Local Coastal Plan and Zoning Designations for the properties
identified in the proposed Initiative and shown on the Initiative exhibit maps are as follows:
1. Assessor's Parcel #211 -022-21
General Plan - Open Space (OS)
Local Coastal Plan-Open Space (OS)
Zoning-Open Space (OS)
Carlsbad Ranch Specific Plan-Open Space (OS)
2. Assessor's Parcel #211-023-11
General Plan - Open Space (OS)
Local Coastal Plan-Open Space (OS)
Zoning-Open Space (OS)
Carlsbad Ranch Specific Plan-Open
3. Assessor's Parcel #211-023-13
General Plan - Open Space (OS)
Local Coastal Plan-Open Space (OS)
Zoning-Open Space (OS)
Carlsbad Ranch Specific Plan-Open
4. Assessor's Parcel #211-010-24
General Plan-Travel/Recreational Commercial (TR)
Local Coastal Plan-Travel Services Commercial (TR)
Zoning-Public Utility (PU)
5. Assessor's Parcel #211-023-31
General Plan - Open Space (OS)
Local Coastal Plan-Open Space (OS)
Zoning-Public Utility (PU)
6. Assessor's Parcel #211-023-05
General Plan - Open Space (OS)
Local Coastal Plan-Open Space (OS)
Zoning-Public Utility (PU)
7. Assessor's Parcel #211-023-28
General Plan - Open Space (OS)
Local Coastal Plan-Open Space (OS)
Zoning-Open Space (OS)
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8. Assessor's Parcel #208-020-44 (Note: Not identified in the Initiative as an
affected assessor's parcel but shown on the exhibit maps contained in the
Initiative.
General Plan - Open Space (OS)
Local Coastal Plan-Open Space (OS)
Zoning-Open Space (OS)
D. Consistency with the Existing General Plan
The Initiative proposes to amend the existing General Plan by making changes to the
Vision, the Land Use Element and the Open Space and Conservation Element. The major
General Plan consistency and land use policy implications associated with the Initiative relates to
its impact on agricultural use in the city and on the provision for providing adequate
Travel/Recreation Commercial use in the City's coastal zone.
The long-standing City policy regarding agriculture as a land use, as clearly expressed in
the existing General Plan and Local Coastal Program, is that agriculture is an interim, temporary
land use. Once a property owner determines that it is economically infeasible to continue to
farm their land, they are permitted to develop with an alternative use that is consistent with the
permanent land use designated in the General Plan. The proposed Initiative (Sections 3.3 and
3.7) would delete text in the existing General Plan that expresses the City policy that agriculture
is an interim land use. It would add text that establishes the policy that agriculture is a long-
term, permanent land use in the City (Sections 3.1, 3.3 and 3.5). These policy deletions and
additions would apply citywide and not just to the strawberry and flower field areas of the City.
For the strawberry and flower field areas, the Initiative would identify these areas as particularly
important for continued agricultural use (Sections 3.7, 3.8, 3.11 and 3.13) and further designate
them with a new category of land use, Coastal Agriculture (Sections 3.9, 3.13 and 3.14). The
Initiative appears to put the burden on the City to ensure continued agricultural production on the
areas identified for coastal agriculture (Section 3.12(A.3 and B.2) and Section 3.13(C.4, C.7 and
C.8). It is not specified what this really means or whether it commits the City to using financial
means, such as subsidies, or other incentives to ensure agricultural production. The prevailing
land use policy is that a City cannot force a property owner to farm their land even if the City
places an agricultural designation or easement on the property. The property may remain vacant
but applying an agricultural designation does not ensure that the land will actually be farmed
with flowers or strawberries or other types of crop production.
The proposed Initiative would also make agriculture a Category 1 Priority Open Space
Use (Section 3.3). The major land use consistency concern associated with this is that, from a
purely environmental standpoint, agriculture is a problematic type of open space use. It
eliminates natural habitat, uses chemicals, run-off from agricultural lands negatively impacts
other open space uses including waterways, the lagoons and the ocean and it restricts public
access to open space areas. For security and chemical risk concerns, most agricultural areas are
fenced and public access is prohibited. This is of particular concern along the south shore of
Agua Hedionda Lagoon because the General Plan as well as the Local Coastal Plan designates a
19s
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public trail system connecting Cannon Road with the edge of the lagoon and public viewing
areas. There are many City residents, especially those living in close proximity to agricultural
areas that consider agriculture to be a nuisance type of use because of the environmental issues.
The Initiative proposes to change the General Plan land use designation on 45 acres of
land on the south shore of the lagoon at the northeast corner of 1-5 and Cannon Road from
Travel/Recreational (TR) Commercial to Open Space (OS) and to identify it as part of the coastal
agriculture land use category. The existing General Plan considers Travel/Recreation
Commercial to be an important land use in the overall development and financial structure of the
City. The Travel/Recreation Commercial designation includes uses that serve visitors, tourists
and the traveling public as well as residents and workers in the city. The existing General Plan
contains the following policy statements relating to Travel/Recreation Commercial uses:
1. A City that promotes recreational and tourist-oriented land uses which serve visitors,
employees of the industrial and business centers, as well as residents of the city (Land
Use Element, Commercial Goal A.4).
2. Encourage commercial recreation or tourist destination facilities (Land Use Element,
Commercial Implementing Policies C.10).
3. Orient travel/recreation commercial areas along the 1-5 corridor, in the Village, or
near resort/recreation areas (Land Use Element, Commercial Implementing Policies
C.ll)
E. Consistency with the Habitat Management Plan
The City's Habitat Management Plan (HMP) designates some of the property affected by
the Initiative as hard-line preserve area that must be conserved as natural habitat. This would
cause inconsistencies between City policies and programs that would have to be resolved if the
Initiative is approved. On the one hand, the City would have the HMP mandating that the land
be retained in its natural state while the General Plan would be encouraging the land to be used
for agricultural production.
F. Consistency with Local Coastal Program and Coastal Act
The Initiative does not specifically propose to amend the City's Local Coastal Program.
However, if approved, the proposed Initiative would be inconsistent with the Agua Hedionda
Local Coastal Program Land Use Plan (LCP) and the City would be required to process a Local
Coastal Program Amendment that would have to be approved by the Coastal Commission. The
major area of inconsistency between the Initiative and the Agua Hedionda LCP is explained
below.
Similar to the General Plan, the LCP designates the 45-acre portion of the south shore
property for Tourist-Serving (TS) Commercial use. The LCP, as originally adopted, allows 45
Election Code Section 9212 Report
July 5, 2006
Page 13 of 16
acres of the property to be developed with commercial use in return for retaining the rest of the
south shore portion of the property in some form of open space. The LCP requires an
agricultural easement and agricultural zoning to be placed on the open space portion of the
property unless an agricultural mitigation program is established for other agricultural lands in
the city's coastal zone. In that case, the property could utilize that program and not be subject to
the agricultural easement and zoning requirement. This was done through the establishment of
the Agricultural Mitigation Fee Program that allows a property owner of agricultural land to use
their land for an alternative use upon payment of a fee. The Agricultural Mitigation Fee Program
was originally established through state statute and was placed into the State Coastal Act
(Section 30171.5 of the Act).
There are at least three implementation concerns that need to be addressed to resolve the
inconsistency between the Agua Hedionda LCP and the proposed Initiative if it is approved. The
three concerns are as follows:
1. Tourist-Serving (TS) Commercial is a high priority use in the State Coastal Act and
the LCP. Will the Coastal Commission approve an amendment that deletes this high
priority use without replacing it with an equal amount somewhere else in the City's
coastal zone? On previous amendments to remove TS in the City, the City was
required to replace it. At present, there is not a large amount of vacant property in the
City's coastal zone suitable for TS uses.
2. Does not allowing some development on the south shore property present a property
rights/takings issue? All legal parcels in the city are allowed some level of
development rights unless the property owner is compensated for the loss of all
development rights.
3. What concerns arise with consistency with the Coastal Act since the "Agricultural
Mitigation Fee Program is specifically contained in the Act and the City's overall
Local Coastal Program if this property is not permitted to utilize the Fee Program like
all other similar properties in the City?
The applicable sections of the Agua Hedionda LCP are attached to this analysis as
Attachment "4".
G. Consistency with Carlsbad Ranch Specific Plan
The parcels located south of Cannon Road that are affected by the proposed Initiative
(Assessor's Parcel #211-022-21, #211-022-11 and #211-023-13) are located within the
boundaries of the Carlsbad Ranch Specific Plan that is also the implementing document for this
portion of the Mello II Local Coastal Program Land Use Plan. All of the parcels are designated
and zoned for Open Space. One of the parcels is the Flower Fields that the Specific Plan
requires to remain in flower production and associated uses in perpetuity. Although agriculture
Election Code Section 9212 Report
July 5, 2006
Page 14 of 16
is allowed on the other two parcels, the Specific Plan designates them for golf course and other
active open space uses. The Specific Plan will probably need to be amended to encourage
agriculture on these two parcels and prohibit golf course use.
H. Other Zoning Consistency Matters
Although the Initiative changes the General Plan land use designation of the 45-acre
parcel from Travel/Recreation Commercial to Open Space, it does not rezone the property from
its existing zoning designation of Public Utility (PU) to Open Space (OS). Similarly, it does not
rezone the rest of the SDG&E property from PU to OS. Government Code (GC Section 65860)
requires zoning to be consistent with the General Plan. If the Initiative passes, it will create an
obvious inconsistency between the General Plan and the Zoning Ordinance which will need to be
addressed by the City.
The Initiative will require significant amendments to the zoning provisions applicable to
the effected properties in order to bring them into consistency with the Initiative. The City does
not have a coastal agriculture zoning designation and one will have to be adopted consistent with
this Initiative. In addition, this Initiative does not amend the Local Coastal Program. This will
have to be addressed by the Council. The most significant area of controversy will be the 45-
acre parcel that is re-designated from Travel/Recreational Commercial to Open Space. This
conflicts with the visitor-serving requirements found in the Coastal Act. This portion of the
Initiative is subject to the approval of the California Coastal Commission and will not become
effective until approved by the Commission.
IV. Regional Housing Needs
Currently, the City of Carlsbad has not designated any portion of the lands impacted by this
Initiative for housing to meet its fair share housing needs. The adoption of this Initiative would
not change this housing impact emphasis. Regional fair share housing needs will need to be met
from lands outside of the areas covered by this Initiative. There will be some indirect impacts in
that farm labor housing may continue to be an issue of concern due to the employment
requirement of the new agricultural designations.
V. Infrastructure Issues
The attached report by RSG addresses these issues (Attachment 2).
VI. Attraction and Retention of Business
It is required that this Report study the impact of the Initiative on the community's ability to
attract and retain business and employment. The attached report by RSG addresses these issues
(Attachment 2).
Election Code Section 9212 Report
July 5, 2006
Page 15 of 16
VII. Impact on Vacant Parcels
To the extent of unused portions of land subject to this Initiative, please see Section III, above.
VIII. Impact on Various Land Uses
Section III lists the impacts of this proposal on agricultural lands and open space. Traffic
circulation will not be impacted in that the Strawberry Fields Initiative does not change current
land uses but freezes the current land uses (agriculture) in place. The RSG report deals with the
impact of the Initiative on existing business districts and developed areas designated for
revitalization.
IX. Conclusion
This Report addresses the issues required by the 9212 Report. One of the main difficulties of
this Report is determining the land use implications of a change from the areas in question as
transitional in nature to a permanent coastal agricultural and open space zoning. At least one
property owner has addressed specific questions to the City on this subject. SDG&E, on June
13, 2006 has requested the Citizens' Committee formed by the Council address certain questions
related to the proposed Initiative. These questions and responses given by Special Legal Counsel
for the City to the Citizens' Committee are attached to this Report as Attachment "5". These
questions reflect some of the potential legal challenges that the City may face in implementing
this Initiative.
The City Council may either adopt the Initiative as law without placing it on the ballot or let the
voters decide in November. It is recommended that the City Council not adopt the Initiative. In
addition to the land use and fiscal concerns raised in the Report and its attachments, the
procedural problems discussed in Section I of this Report may create serious implementation
problems. For example, the retroactive provisions in the Initative appear to violate State law.
While these flaws would probably not result in total invalidation of the Measure in a court of
law, adoption at this time would limit the City Council's options in dealing with these legal
inconsistencies.
The main thrust of the Strawberry Fields Initiative is to restrict land uses permanently as Open
Space and Coastal Agricultural. The creation of a coastal agricultural zone and permanent open
space areas will create future challenges for the City Council. The standard applicable to these
properties to allow for any changes from these land uses without a vote of the people is based on
a standard based on an unconstitutional deprivation of property rights. The City will be required
to monitor the state of the law and draft administrative procedures accordingly. The feasibility
of keeping these properties in agriculture will also depend on the future of state legislation and
regulatory requirements of both the California Energy Commission and the California Public
Utilities Commission. The preemptive authority over local land use restrictions could possibly
require future City action that may conflict with the goals and policies of the Initiative. The
fiscal impacts of this Measure may also be impacted by changes in future state and federal law.
Election Code Section 9212 Report
July 5, 2006
Page 16 of 16
Finally, if this Initiative is adopted by a vote of the People, the City Council will be required to
make numerous land use, LCP, Zoning and procedural changes to existing laws to implement the
Strawberry Fields Initiative in a legally appropriate manner. Zoning ordinances and the Carlsbad
Ranch Specific Plan will have to be brought into conformity with the newly amended General
Plan. The LCP will have to be amended to comply with the changes. These changes will not be
effective until approved by the California Coastal Commission. Most of these changes will
require public hearings and many will require future CEQA analysis. Implementation will
require new review criteria (/. e., Constitutional standards for land use review) never adopted by
other California Cities. The implementation of this Initiative may take more time and resources
than any other land use procedure ever implemented by the City of Carlsbad.
JPL:kld
n
Attachment 1
r'Cn *
To the Honorable City Clerk of the City of Carlsbad: We, the undersigned, registered and
qualified voters of the County of San Diego hereby propose an initiative measure to
amend the City of Carlsbad General Plan. We petition you to submit this measure to the
City Council of the City of Carlsbad for adoption without change, or for submission of
the measure to the voters of the City of Carlsbad at a general or special election. The
measure provides as follows:
SAVE THE STRAWBERRY AND FLOWER GROWING FIELDS ACT OF 2006
The People of the City of Carlsbad do hereby enact and ordain:
Section I. TITLE.
I . I This initiative shall be known and may be cited as the "Save the Strawberry and
Flower Growing Fields Act of 20Q6"
Section 2. PURPOSE AND FINDINGS.
2, 1 Purpose, The purpose of this initiative is to conserve current coastal Open
Spaces and historic coastal agricultural uses within the City of Carlsbad ("City")
located at the south shore of the Agua Hedionda Lagoon. The City has a history
and policy of promoting and protecting such coastal agricultural uses as well as
ensuring environmental protection of its lagoons, watersheds, agricultural lands,
open spaces and scenic resources, among others. This initiative amends the
Carlsbad General Plan to promote and strengthen the continuation of such land-
use policy in this specific sensitive area of the community commonly known as
the Strawberry and Flower Growing Fields. Specifically, the initiative provides
for a new designation of agricultural lands as coastal agriculture within the Open
Space Element of the Carlsbad General Plan for these areas within the Coastal
Zone currently in agricultural production, and to conserve these designated areas
from premature fragmentation, inappropriate developments or other inconsistent
land uses.
22 History and Location. The City has historically supported the conservation of
coastal agriculture as evidenced within its General Plan, Agua Hedionda Land
Use Plan - Local Coastal Plan Segment, among other City documents, policies
and plans. This initiative will strengthen and promote that City policy. The subject
area of this initiative is immediately adjacent to the south shore of the Agua
Hedionda Lagoon and is internally contiguous. The area described will form a
"T" shape in the Coastal Zone. The bottom of the "T" begins at, and runs in a
north to south direction from the north end of Palomar Airport Road between
Lcgoland to the east and commercial developments to the west and northward to
Cannon Road. This long rectangular area consists of the "official" Flower Fields
of 53.40 acres and the immediately adjacent area of 45.60 acres, also currently in
agricultural production. The "top" of me "T* is that area sandwiched between
IK I 9 2005
Cannon Road to the south and Agua Hedionda Lagoon to the north and running
east to west from Interstate 5 toward El Camino Reai along the north edge of
Cannon Road and die south edge of Agua Hedionda Lagoon, Another area for
inclusion Is currently in agricultural production and consists of 26.45 acres
contiguous with this area, with Cannon Road forming its north boundary and
Legotand forming its south boundary. Map locations and Assessor Parcel
Numbers ("APN's") are provided herein for location reference. See also, Exhibits
A - D for further reference.
2.3 Findings. The People of the City of Carlsbad find and declare that the subject
lands of this initiative are currently under-protected by City policy and established
planning documents including, but not necessarily limited to, the City General
Pian and Zoning Ordinances, Agua Hedionda Land Use Plan - Local Coastal Plan
Segment, Habitat Management Plan, Citywide Facilities Management Plan,
Growth Management Plan, South Carlsbad Coastal Redevelopment Plan and
Carlsbad Ranch Specific Plan. The People of the City enact this legislation to
effectuate necessary guidance for futxure planning in this important land use area
as such affects community desires, health, safety and well being. The City
Council is directed by the People to give all effectuation, by whatever means
practicable, to implementing the intentions of this initiative.
2.4 Recognitions. The People of the City Carlsbad recognize that the area described
in this initiative could be developed in the future into residential, commercial or
other developments and intend hereby to legislate and provide policy guidance to
elected City officials and staff that the will of the People of the City of Carlsbad is
to maintain, keep, and conserve these lands as Open Space for land uses
consistent with coastal agriculture. It is also acknowledged that property rights
negotiations have occurred in the past, and may be occurring currently between
the owners of these lands and others with potential residential, commercial or
other development interests.
Section 3. GENERAL PLAN AMENDMENTS.
Within this Section the People of the City of Carlsbad hereby readopt, reaffirm and
amend the Carlsbad General Plan adopted on September 6, 1994 through City Council
Resolution No. 94-246 and as subsequently amended through the filing date of this
initiative, as set forth below. Text to be inserted into the General Plan is indicated in bold
italic type while text to be stricken is indicated by -/scrikethrough/- (i.e., atrikethrough)
type, and text in standard type is currently as it appears in the Carlsbad General Plan.
3,1 The VISION AND INTRODUCTION section of the Carlsbad General Plan, Part
f. CARLSBAD - THE VISION, the first vision statement located as the first
paragraph on the left side of the page on page 1; the text is amended as follows:
A City which provides a balanced variety of land uses for living, business,
employment, recreation and open space opportunities including
appropriate agricultural production areas.
3,2 The OPEN SPACE & CONSERVATION ELEMENT of the Carlsbad General
Plan, Part II FRAMEWORK FOR OPEN SPACE & CONSERVATION
PLANNING, Section A. Open Space Definition & Classification System,
Category 2: Open Space for Managed Production of Resources, located at page 3;
the text is amended as follows:
CATEGORY 2: Open Space for Managed
Production of Resources
(a) Forestry/Agriculture/Aquaculture;
i) Forest lands;
ii) Rangeland;
i i i) Agriculture and Coastal Agriculture*,
iv) Aquaculrure
v) Horticulture, including greenhouses;
or
vi) Flower Fields and contiguous Coastal Agriculture,
3.3 The OPEN SPACE & CONSERVATION ELEMENT of the Carlsbad General
Plan, Part Ft, FRAMEWORK FOR OPEN SPACE & CONSERVATION
PLANNING, Section F. Citvwide Open Space Plan, Category 2: Open Space for
Managed Production of Resources, located at page 16; the text is amended as
follows:
Forestry/Agriculture/Aquaculture(2a)
Forestry, agriculture and aquaculture are considered a category 5 cirywide
priority for future open space planning except that coastal agriculture
areas adjacent to Agua Hedionda Lagoon and as they connect in a
contiguous manner with the flower fields shall be considered a Zone
Primary Action Priority in Local Facilities Management Zone 13 and
shall be considered here a category 1 priority. It is the City's intention to
support and utilize ail measures available, including, but not limited to,
the Williamson Act, to secure agricultural land uses for as long as possible
pttef tottewlepmeHt; and to promote the long-term economic viability of
agricultural uses. However, it should-be recogaized that Carlsbad is «H
JEing city, and the projected pattern of development is sueh that the
cos-generally required for economic agricultural operations ore
Hiafelfr^
3.4 The OPEN SPACE & CONSERVATION ELEMENT of the Carlsbad General
Plan. Part II. FRAMEWORK FOR OPEN SPACE & CONSERVATION
PLANNING, Section G. Maps of the Open Space & Conservation Element,
located at pages 35-36; the Official Open Space & Conservation Map is amended
to include an area of land of approximately 45 acres abutting Interstate 5 on the
east, Agua Hedionda Lagoon on the north and Cannon Road on the south to be
added as Open Space from Travel/Recreation Commercial Use (T-R) to the map
as shown through Exhibits C and D as Open Space and coastal agriculturaj lands
and as identified by assessor parcel numbers (APN's) in Sections 3.6 and 3.11 of
this Initiative. The People of Carlsbad in amending the Official Open Space &
Conservation Map hereby find that (I) The proposed open space is equal to or
greater than the area depicted on the Official Open Space and Conservation Map;
(2) That the proposed open space area is of environmental quality equal to or
greater than that depicted on the Official Open Space and Conservation Map; and
(3) the proposed adjustment to open space, as depicted on the Official Open Space
and Conservation Map, is contiguous or within close proximity to open space as
shown on the Official Open Space Map.
3,5 The OPEN SPACE & CONSERVATION ELEMENT of the Carlsbad General
Plan, Part HI. GOALS OBJECTIVES & IMPLEMENTING POLICIES AND
ACTION PROGRAMS, Open Space Planning and Protection segment sub-part
A, Goals, located at page 21; the text is amended as follows:
A. GOALS
A.I An open space system of aesthetic value that maintains the
community identity, achieves a sense of natural spaciousness, and
provides visuaJ relief in the cityscape.
A.2 A city with a balance of programmed and unprogrammed open
space within each of the four quadrants of the City.
A.3 An open space system that improves the quality of life for the
citizens of Carlsbad.
A. 4 A city with an adequate amount and variety of open space for
outdoor recreation and agricultural production including coastal
agricultural production, including, but not limited to: parks; beaches;
areas for organized sports; connecting corridors containing trails; water
recreation areas (beaches, lagoons, lakes); unique conservation areas for
nature study; agriculture including coastal agriculture; and, semi-
developed areas for camping.
3.6 The OPEN SPACE & CONSERVATION ELEMENT of the Carlsbad General
Plan, Part ffi. GOALS OBJECTIVES & IMPLEMENTING POLICIES AND
ACTION PROGRAMS, Open Space Planning and Protection, segment sub-part
B, Objectives, located at page 21; the text is amended by adding a new objective
after the last stated objective of B. 12, as follows;
B. OBJECTIVES
B. 13 To provide for continued coastal agricultural production adjacent
to Agua Hedionda Lagoon forming as contiguous as possible a
connection with the flower fields and utilizing the area between the
south shore of the lagoon and (he north edge of Cannon Road and
contiguous parcels for continued coastal agricultural production
including, but not limited to, flower fields and strawberry fields,
3.7 The OPEN SPACE & CONSERVATION ELEMENT of the Carlsbad Genera]
Plan, Part HI. GOALS OBJECTIVES & IMPLEMENTING POLICIES AND
ACTION PROGRAMS, Promoting Agriculture, located at page 29; the text is
amended as follows:
PROMOTING AGRICULTURE
Agriculture is an important resource in the City of Carlsbad?, in particular
coastal agriculture in the vicinity of Agua Hedionda Lagoon and its
connection with the flower fields is In integral resource deserving of
special conservation measures. Agriculture policies are intended to
support agriculture activities while planning for possible firtu-re transition
to more urban uses consistent with the policies of the Land Use Element
and the Carlsbad Local Coastal Program,
A. GOAL
A city which recognizes the important value of agriculture and horticulture
lands. A City which recognizes the unique value of coastal agriculture
uses adjacent to Agua Hedionda lagoon and contiguous agricultural
open space areas with the flowerflelds.
B. OBJECTIVES
B. I To develop an inventory of agricultural uses in the City-, and to
identify areas of coastal agriculture in the vicinity of Agua Hedionda
Lagoon where conservation and special programs may be established to
ensure long term operational viability of these important coastal
agricultural areas.
B.2 To promote the establishment of agricultural preserves.
B,3 To promote the use of technology for agricultural purposes to
improve the economic viability of agriculture.
B.4 To ensure that new development is sensitive to existing
agricultural uses.
B.5 To ensure that agricultural uses do not adversely impact sensitive
environmental resourcesr-, through the use of appropriate
mitigation measures, where applicable.
3.8 The OPEN SPACE & CONSERVATION ELEMENT of the Carlsbad General
Plan, Part ID. GOALS OBJECTIVES & IMPLEMENTING POLICIES AND
ACTION PROGRAMS, Promoting Agriculture, Implementing Policies and
Action Programs sub-part, located at pages 29-30; the text of paragraphs C.i
through C. 17 are retained in their entirety, a new paragraph is inserted as C. 18
and the text is amended as follows:
IMPLEMENTING POLICIES AND ACTION PROGRAMS
C. IS Continuation of coastal agricultural production along the south
shore ofAgua Hedionda Lagoon end forming as contiguous as possible
a connection with the flower fields is a priority for agriculture!
conservation within the Land Use Element and the Open Space &
Conservation Element of the City of Carlsbad General Plan. The
following areas as identified by assessor parcel numbers (APN's) sftatt
be included as open space for coastal agricultural production deserving
of special resource protections by the City: APN 211-023-13; APN 211-
823-11; APN 211-022-21; APN 211-910-24; APN 211-019-05; APN 211-
010-31; APN 211-010-28, as is further identified graphically on Exhibits
A-D. All maps, charts and graphs shall be amended by the City to
reflect their inclusion as such.
3.9 The OPEN SPACE & CONSERVATION ELEMENT of the Carlsbad General
Plan, Part IV, Glossary, located at page 40; the text is amended by adding a
definition of Coastal Agriculture to the definitions contained therein and the text
is amended as follows:
COASTAL A GR/CULTURE Lands located within the coastal
zone of the City that support
production of agricultural products,
3.10 The LAND USE ELEMENT of the Carlsbad General Plan, Part II.
DESCRIPTION OF THE LAND USE, Section A. City Form and Function, sub-
part 2, Major Factors Affecting Form, Factor 2: Airport and Nonresidential
Corridor, the second full paragraph, located at page 3; the text is amended as
follows:
''Factof 2: Airport and Nonresidenrial Corridor"
This nonresrdentia! corridor extends beyond the actual influence area of
the airport, all the way to the ocean and the mouth of Agua Hedionda
Lagoon, The extension comes about due to the proximity of the airport's
influence area to the 640-acre utility corridor owned by San Diego Gas
and Electric for the Enema Power Plant and its associated major
transmission right-of-way along the southerly shore ofAgua Hedionda
Lagoon. Land within this ownership may be used onJy for industrial
utility functions existing utility transmission corridors, coastal
agricultural production and open space.
3. II The LAND USE ELEMENT of" the Carlsbad General Plan, Part II,
DESCRIPTION OF THE LAND USE, Section D. Special Planning
Considerations, sub-part 5. Agriculture, located at page 26; the text of the first full
paragraph is amended as follows, the two paragraphs that follow are retained in
their entirety:
5. AGRICULTURE
Agricultural is an important resource in Carlsbad. In particular, coastal
agricultural uses adjacent to Agua Median da Lagoon are of a high
conservation priority for the City, The City's agricultural policies are
intended to support agricultural activities while planning for future
transition of the land to more Open Space, Community Parks, or urban
uses consistent with the policies of the General Plan and the Carlsbad
Local Coastal Plan (I.CP).
3.12 The LAND USE ELEM ENT of the Carlsbad General Plan, Part HI, GOALS,
OBJECTIVES AND IMPLEMENTATION POLICIES AND ACTION
PROGRAMS, Agriculture, located at pages 37 - 38; the text is amended as
follows:
AGRICULTURE
A. GOALS
A.! A City which prevents the premature elimination of agricultural
lands and preserves said lands wherever possible.
A.2 A City which supports agriculture while planning for possible
transition to urban uses,
.4,3 A City which recognizes the importance of, and effectively plans
for, continued coastal agricultural production adjacent to Agua
Hedionda Lagoon including, but not limited to, conserving
contiguous parcels with the flower fields.
B. OBJECTIVES
6.1 To permit agricultural land uses throughout the City.
B.2 To conserve the largest possible amount of undeveloped land
suitable for agricultural purposes, through the willing compliance
of affected parties? or the establishment of special City programs
designed to ensure that coastal agricultural production is
maintained.
B 3 To develop measures to ensure the compatibility of agricultural
production and adjacent land uses.
313 The LAND USE ELEMENT of the Carlsbad General Plan, Part III, GOALS,
OBJECTIVES AND IMPLEMENTATION POLICIES AND ACTION
PROGRAMS, Agriculture, Section C, Implementing Policies and Action
Programs, located on page 38; the text is amended by retaining the text of
Paragraphs C. I, C.2, C.3, C.5, and C.6 in their entirety, and amending paragraph
C.4 as follows, and adding two new paragraphs C7 and C.8 as follows:
C .4 Attempt to preserve Conserve by whatever means practicable the flower
fields or lands east of 1-5 to the first ridge line between Cannon Road and
Palomar Airport Road, and contiguous connections to agricultural lands
to the north located on the south shore of Ague Hedionda Lagoon that
run easterly from 1-5 along Cannon Road through whatever method
created and most advantageous to the City of Carlsbad.
C.7 A ctively pursue all practicable methods or modes of conservation of
contiguous coastal agricultural lands with theflower fields identified
above in paragraph C.4 to ensure such coastal agricultural production
on the south shore ofAgua Hedionda Lagoon continues, and to
conserve these lands currently in agricultural production to retain their
agricultural uses into the long-term by whatever means practicable.
C,8 Continuation of coastal agricultural production along the south shore of
Agua Hedionda Lagoon and forming as contiguous as possible a
connection with the flower fields is a priority for agricultural
conservation within the Land Use Element and Open Space £
Conservation Element of the City of Carlsbad General Plan, The
following areas as identified by assessor parcel numbers (APN's) shall
be included as open space for coastal agricultural production deserving
of special resource protections by the City; APN 211-023-13; A PN 211-
023-11; APN 211-022-21; APN 211-010-24; APN 211-010-05; APN 211-
010-31; APN211-010-28, as is further identified graphically on Exhibits
A~&. All maps, charts and graphs shall be amended by the City to
reflect their inclusion as such,
314 The LAND USE ELEMENT of the Carlsbad General Plan, Part H.
DESCRIPTION OF THE LAND USE, Map 2: General Plan Land Use Map,
located on pages 7-8 is amended to include an area of land of approximately 45
acres abutting Interstate 5 on the east, Agua Hedionda Lagoon on the north and
Cannon Road on the south to be added as Open Space from Travel/Recreation
Commercial Use (T-R) to the map as sho%vn through Exhibits A and B as Open
Space and coastal agricultural lands and as identified by assessor parcel numbers
(APN's) in Sections 3.6 and 3.11 of this Initiative.
3.15 The LAND USE ELEMENT of the Carlsbad General Plan, Part IV. Glossary,
located at page 4!; the text is amended by adding a definition of Coastal
Agriculture to the definitions contained therein and the text is amended as
follows:
COASTAL A GRICUL TURE Lands located within the coastal
tone of the City that support
production of agricultural products.
Sectioti4. IMPLEMENTATION,
4.1 Effective Date. Upon the effective date of this initiative, the provisions of this
initiative are hereby inserted into the City of Carlsbad General Plan as an
amendment thereof, except that if the amendments of the mandatory elements of
the general plan permitted by State law for any given calendar year have already
been utilized in the calendar year in which the initiative becomes effective, this
general plan amendment shall be the first amendment inserted in the City's
General Plan on January 1 of the next year. At such time as this general plan
amendment is inserted in the City of Carlsbad General Plan, any provisions of the
City Zoning Ordinance, as reflected in the ordinance itself or the City Zoning
Map, inconsistent with this general plan amendment shall not be enforced.
4.2 Interim Amendments. The City of Carlsbad General Plan in effect at the time the
Notice of Intention to circulate this initiative measure was submitted to the City
Elections Official (December 19, 2005 "submittal date"), and that General Plan as
amended by this initiative measure, comprise an integrated, internally consistent
and compatible statement of policies for the City. In order to ensure that the City
of Carlsbad remains an integrated, internally consistent and compatible statement
of policies for the City as required by State law and to ensure that the actions of
the voters in enacting this initiative are given effect, any provision of the General
Plan that is adopted between the submittal date and the date that the General Plan
is amended by this measure shall, to the extent that such interim-enacted
provision is inconsistent with the General Plan provisions adopted by this
initiative measure, be amended as soon as possible and in the manner and time
required by State law to ensure consistency between the provisions adopted by
this initiative and other elements of the City's General Plan.
4.3 Other City Ordinances and Policies. The City of Carlsbad is hereby authorized
and directed to amend the General Plan, sub-plans, community plans, specific
plans, zoning ordinance, and other ordinances and policies and/or plans affected
by this initiative as soon as possible and in the manner and time required by any
applicable State law to ensure consistency between the policies adopted in this
initiative and other elements of the City's General Plan, zoning ordinance, and
other City ordinances, policies and/or plans as may be the case,
. EXEMPTIONS AND EXCEPTIONS FOR CERTAIN MATTERS.
5,1 This initiative shali be subject to amendment by the City Council without the
required vote of the People of Carlsbad upon a showing of substantial evidence on
the record that implementation or operation of this initiative will frustrate City
functions in any of the following circumstances:
(a.) To affect City compliance with any State mandated programs, including
but not limited to: housing requirements; density bonuses; development
agreements; certified redevelopment plans; vesting tentative maps; or
other matters otherwise required by State law;
(b.)To deprive any person, organization or entity of their Constitutional rights,
including property rights, and no takings shall be allowed through the
construction or implementation of this initiative;
(c.) To affect any development project that has obtained as of the effective
date of the initiative a vested right pursuant to State or local law,
Upon such a showing the City Council may amend this Initiative in manner that
most narrowly construes the City's compliance obligations, or liability, as the
case may be, yet at the same time balances the broadest possible construction and
implementation of the intentions of this Initiative, Any such amendments
allowable to the City Council shall not impair the right of the People of Carlsbad
to subsequently seek a Referendum overturning such actions if they so choose.
5.2 The City, through its City Council may amend this initiative without a vote of the
People to engage in any agricultural conservation act consistent with the
intentions of this initiative, including, but not limited to, Williamson Act activities
or the creation of, or implementation of, any other City sponsored agricultural
program or activity designed to enhance, promote, or conserve agricultural
opportunities within the City and specificalJy within the coastal agricultural areas
established by this initiative.
Section.6. SEVERABIUTY AND INTERPRETATION.
6.1 This measure shall be interpreted so as to be consistent with all federal and state
and municipal laws, rules, and regulations. If any section, sub-section, sentence,
clause, phrase, part, or portion of this measure is held to be invalid or
unconstitutional by a final judgment of a court of competent jurisdiction, such
decision shall not affect the validity of the remaining portions of this measure.
The voters and People of Carlsbad hereby declare that this measure, and each
section, sub-section, sentence, clause, phrase, part, or portion thereof would have
been adopted or passed even if one or more sections, sub-sections, sentences,
clauses, phrases, parts, or portions are declared invalid or unconstitutional. If any
provision of this measure is held invalid as applied to any person or circumstance,
such invalidity shall not affect any application of this measure that can be given
effect without the invalid application. This initiative shall be broadly construed in
order to achieve the purposes stated in this initiative, ft is the intent of the voters
and People of Carlsbad that the provisions of this measure shall be interpreted by
10
the City and any courts of competent jurisdiction in a manner that facilitates the
protection of the resources described herein.
Section 7. AMENDMENT OR REPEAL.
7.1 Except as otherwise provided herein, the implementation and operation of this
initiative may only be amended or repealed by a majority vote of the registered
voters of the City of Carlsbad.
Section 8. COMPETING MEASURES.
8.1 In the event there are competing measures on the same ballot with this measure
that purport to address the same subject matter of this measure, the following
rules shall apply: If more than one such measure passes, then both measures shall
go into effect except to the extent that particular provisions of one initiative are in
direct, irreconcilable conflict with particular provisions of another initiative. In
that event, as to those conflicting provisions, only the provisions of the initiative
receiving the most votes shall prevail.
Ex.hibit_List
Exhibit A: Existing Official City of Carlsbad Official Open Space & Conservation Map
Exhibit B: Amended Official City of Carlsbad Official Open Space & Conservation Map
Exhibit C: Existing City of Carlsbad General Plan Land Use Map,
Exhibit D: Amended City of Carlsbad General Plan Land Use Map.
OFFICIAL OPEN SPACE & CONSERVATION MAP
CITY OF CARLSBAD
OFFICIAL OPEN SPACE & CONSERVATION MAP
CITY OF CARLSBAD
i /> i<?!*l3i-'***b' ^i "^ *"*T
OFFICIAL OPEN SPACE & CONSERVATION MAP
^^^^^ CITY OF-CARLSBAD
k^AKN^ .4
-t .^"/s^-'j v,'; ^4**^ < f r=±£srj=^u
OPEN SPACE COASTAL
AGRICULTURE fOSCA)
GENERAL PLAN
LAND USE MAP
City of Carlsbad
GENERAL PLAN
LAND USE MAP
City of Carlsbad
OPEN SP*C£ COASTAL
AGRICULTURE {OSCA1
January 3, 2006
TO; CITY CLERK
FROM: CITY ATTORNEY
Attached to this memorandum, please find the City Attorney's Title and Summary
of the proposed Initiative submitted by your office under the memorandum of
December 19, 2005.
Should you have any questions please do not hesitate to contact me.
RONALD. R, BALL
City Attorney
attachment
General Ran Amendment Initiative to be Submitted
Directly to the Voters
The Oty Attorney has prepared the following Title and Summary of the chief purpose
and points of the proposed measure.
Summary:
This proposed General Plan Initiative Amendment amends the Carlsbad General Plan
to establish a coastal agriculture designation for lands located within the Coastal Zone
of the City that support the production of agricultural products. The initiative contains
eight sections :
Section One:
Titles the Initiative as the "Save the Strawberry and Ffower Growing Fields Act of 2006".
Section Two:
States the purpose and findings.
Section Three:
Amends the vision, introduction, land use, open space and conservation elements of the
Carlsbad General Plan to:
1) Add the designation of Coastal Agriculture, which is defined as lands located
within the Coastal Zone of the City that support production of agricultural
products.
2) Eliminate the concept of potential development and the recognition that Carlsbad
is an urbanizing city and instead establishes coastal agricultural areas adjacent
to the Agua Hedionda Lagoon.
3} Add approximately 45 acres east of Interstate 5 between Agua Hedionda Lagoon
and Cannon Road to the Coastal Agriculture designation.
4) Eliminate the presumption that agricultural policies are intended to support
agnculture activities while planning for possible future transition to more urban
uses and instead establishes coastal agnculture in the vicinity of Agua Hedionda
Lagoon and its connection with the Flower Fields as deserving of special
conservation measures and continued coastal agricultural production.
5) Identify the areas subject to the initiative by exhiat.
6} Eliminate the potential for industrial scale utility functions within the 640-acre
utility corridor owned by San Diego Gas and Electric for the Enema Power Plant
and restricts uses to only existing utility transmission corridors, coastal
agricultural production and open space.
7) Conserve and insure coastal agricultural production by whatever means
practicable and re-designates approximately 45 acres described above from
travel/recreational commercial use to open space and coastal agricultural land.
Section Four:
The effective date is the date of the adoption of the Amendment by the voters or
January 1 of the year following adoption by the voters and prohibits inconsistent
amendments after December 19, 2005, the date that it was submitted to the City Clerk
and directs the City to amend the General Plan, Sub-Plans, Community Plans, Specific
Plans, Zoning Ordinances to make them consistent with this Initiative.
Section Five.
Permits amendment of this Initiative by the City Council without a vote of the people in
certain circumstances to comply with any state mandated programs, that results in a
violation of the Constitutional Rights of any person or entity or to disturb a vested right
under state or local law,
Section Six:
If parts of the Initiative are declared invalid by a court, the remainder of the Initiative is
valid.
SectionSeven:
Except as provided in the Initiative itself, it may not be amended unless by a majority
vote.
Section Eight;
!f there are competing measures on the same ballot then only those irreconcilable
conflicting provisions, which receive the highest number votes shall go into effect.
Attachment 2
City of Carlsbad
Fiscal Impact Report on the
Save the Strawberry Growing Fields
Act of i i :
July 18, 2006
RSG
INTELLIGENT COMMUNITY DEVELOPMENT
ROSENOW SPEVACEK GROUP, INC.
309 WEST 4TH STREET
SANTA ANA, CALIFORNIA 92701-4502
P 714.541.4585
F 714.541.1175
E INFO@WEBRSG.COM
FISCAL IMPACT REPORT ON THE
SAVE THE STRAWBERRY GROWING FIELDS ACT OF 2006
City of Carlsbad
TABLE OF CONTENTS
INTRODUCTION 1
Findings 1
Description of the Site ....2
Permitted Uses 3
Existing Easements and Other Constraints on Use 4
Description of the Initiative 4
ASSUMPTIONS 5
Assumed Build Out as Permitted by General Plan 5
Assumed Build Out as Permitted by the Initiative 11
FISCAL IMPACTS 12
One-Time and Implementation Costs to City of Carlsbad 12
Updating Local Codes and Ordinances 12
Acquisition Cost of TR Property (Parcel 1) 12
Acquisition of Carlsbad Ranch Co./SDG&E Golf Course Site (Parcels 4,10, & 11). 13
Acquisition of Remaining Seven Parcels Not Owned by the City 13
Foregone Development Fees 14
Relocation of AHLF Discovery Center 14
Savings in Development of Trails through HUB Park 15
Ongoing Net Fiscal Impact to City of Carlsbad 15
Property Taxes, Including Redevelopment Property Tax Increment 15
Sales Taxes, Including Property Tax In-Lieu Revenue 16
Transient Occupancy Taxes 17
Business License Fees 17
Tourism Business Improvement District Assessments 17
Savings in Operating Expenditures for the General Fund.... 17
Potential Ongoing Subsidies to Maintain Agricultural Operations 18
IMPACT ON FUNDING FOR INFRASTRUCTURE 18
IMPACT ON THE COMMUNITY'S ABILITY TO ATTRACT AND RETAIN BUSINESS
AND EMPLOYMENT 19
IMPACT ON EXISTING BUSINESS DISTRICTS AND DEVELOPED AREAS
DESIGNATED FOR REVITALIZATION 20
Impacts on Existing Business Districts 20
Areas Designated for Revitalization 20
F:\WORD\Strawberry Fields\921 2Report\Strawberry FIA.doc Page i
FISCAL IMPACT REPORT ON THE
SAVE THE STRAWBERRY GROWING FIELDS ACT OF 2006
City of Carlsbad
INTRODUCTION
Pursuant to Section 9212(a) of the Elections Code, RSG has prepared this fiscal
impact report to assess the initial and long-term financial implications of
enactment of the Save the Strawberry Growing Fields Act of 2006 ("Initiative").
On June 20, 2006, the Carlsbad City Council requested preparation of a report
on various matters relating to the Initiative.
This report addresses the fiscal impacts and other areas identified in Section
9212(a), specifically:
• Fiscal impact (Elections Code Section 9212(a)(1))\
• Impact on funding for infrastructure of all types (Elections Code Section
9212(a)(4));
• Impact on the community's ability to attract and retain business and
employment (Elections Code Section 9212(a)(5)); and
• Impact on existing business districts and developed areas designated for
revitalization (Elections Code Section 9212(a)(7)).
Other impacts associated with this Initiative are addressed in a supplemental
report prepared by City staff.
On July 18, 2006, the City Council will be presented this report prior to taking
procedural actions related to the Initiative.
Findings
In general, the Initiative would direct the City of Carlsbad to provide further land
use restrictions on approximately 430.32 acres of property in the area of Cannon
Road east of Interstate 5 ("Site"). In today's dollars, the implications of the
Initiative include:
• One time and implementation costs ranging from $28.5 to $36.5 million,
including possible acquisition costs and unmitigated development fee losses;
• Net annual losses to the City's General Fund, the Redevelopment Fund, and
the Tourism Business Improvement District ranging from $2.8 to $3.0 million,
exclusive of potentially significant costs to maintain agricultural businesses
on the Site;
• Lost potential of attracting between 902 and 926 jobs to the City; and
• Lower funding for redevelopment and affordable housing projects in the
South Carlsbad Coastal Redevelopment Project Area.
Page 1
FISCAL IMPACT REPORT ON THE
SAVE THE STRAWBERRY GROWING FIELDS ACT OF 2006
City of Carlsbad
Description of the Site
The following map identifies the 12 affected parcels and the corresponding land
use designations in the City's General Plan.
General Plan Land Use - City of Carlsbad
Strawberry/Flower Fields - 2006 Initiatives
Map ID
I -211 01024
2-211 01005
3-211 01031
4-21101028
5 - 208 020 44
6-208 18601
7-208 18604
8-208 18605
9-21201015
10-211 02311
II -211 02313
12-211 02221
I | Parcels
I I Initiatives Study Area
Prepared by: RSG. Inc. for the City of Carlsbad
OS - Open Space and Community Parks
T-R - Tourist/Recreation Commercial I Feet
0 395 790
I)RSG
1,580 2,370 3,160
Source: SanGIS/Cify of Carlsbad
Presently, the Site is largely undeveloped. Agricultural uses include strawberry
production on portions of two parcels north of Cannon Road nearest Interstate 5
and flower production on the parcel adjacent to Palomar Airport Road. This latter
RSG
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FISCAL IMPACT REPORT ON THE
SAVE THE STRAWBERRY GROWING FIELDS ACT OF 2006
City of Carlsbad
parcel is the location of the Flower Fields, a 53.65-acre parcel deed-restricted for
perpetual flower production.
The City's General Plan designates all but one of these parcels as Open Space
(OS); one parcel (at the northwest corner of Cannon Road and Interstate 5) is
designated for Travel/Recreational Commercial (TR) use.
A summary of existing uses and general plan designations by Assessor's Parcel
Number (APN) is presented in the table below. Please note that this report
references parcels in the Site based on the Map ID number noted in the table.
Map
ID
1
2
3
4
5
6
7
8
9
10
11
12
Assessors
Parcel
Number
211-010-24
211-010-05
211-010-31
211-010-28
208-020-442
208-186-01
208-186-04
208-18645
212-010-15
211-023-11
211-023-13
211-022-21
Total
Owner
San Diego Gas &
Electric
Winter, Ray &
Constance
San Diego Gas &
Electric
San Diego Gas &
Electric
State of California
(Dept. of Fish & Game)
Kelly Land Co.
Kelly Land Co.
Agua Hedionda
Lagoon Foundation
City of Carlsbad
Carlsbad Ranch
Company LP
Carlsbad Ranch
Company LP
C B Ranch Enterprises
Acres1
49.20
1.40
181.15
15.99
48.88
0.45
4.79
2.63
0.20
45.60
26.38
53.65
430.32
Existing Use(s)
Growing Fields
Growing Fields
Growing Fields,
Undeveloped
Growing Fields,
Undeveloped
Undeveloped
Undeveloped
Undeveloped
AHLF Visitors Center
Undeveloped
Growing Fields,
Undeveloped
Growing Fields,
Undeveloped
Flower Fields
General Plan
Designation
Travel/Recreational
Commercial
Open Space
Open Space
Open Space
Open Space
Open Space
Open Space
Open Space
Open Space
Open Space
Open Space
Open Space
Permitted Uses
The Site falls under the jurisdiction of several local (City) and state (California
Coastal Commission) planning designations and codes that regulate uses of the
site. Presently, the City's General Plan and other local planning overlays are
consistent with the City's Local Coastal Program (LCP) prepared for the Coastal
Commission. The Initiative does not propose to alter the Local Coastal Program,
so implementation of the Initiativecannot occur without subsequent approval of all
applicable changes to the LCP necessary to effectuate the intent of the Initiative
by the Coastal Commission.
Uses permitted by the General Plan are described below:
RSG
1 Source: SanGIS/City of Carisbad
2 Only 41 percent of this parcel's is located within the boundaries of the area affected by the Initiative. Acreage
shown is only the portion within the Initiative area.
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FISCAL IMPACT REPORT ON THE
SAVE THE STRAWBERRY GROWING FIELDS ACT OF 2006
City of Carlsbad
• Open Space: Aside from the parcel designated for TR uses described below,
all parcels are designated for Open Space use in the General Plan. Open
Space may include land or water for the preservation of natural resources;
the managed production of resources; outdoor recreation; aesthetic, cultural
and educational purposes; and for public health and safety. In general, it
has been anticipated that the Open Space uses in the Site would be used for
environmental protection, golf course use, agriculture, and park uses.
• Travel/Recreational Commercial (TR): APN 211-010-24 (Parcel 1) is the only
parcel in the Site designated for Travel/Recreational Commercial use in the
General Plan. According to the General Plan Land Use Element, this land
use category permits development of visitor attractions and commercial uses
that serve the travel and recreational needs of tourists, residents and
employees of business and industrial centers. The particular uses permitted
under the designation include hotels, restaurants, specialty retail and other
uses. Under the Zone 13 of the Local Facilities Management Plan (LFMP),
the City has established a cap on the number of vehicle trips per day for this
parcel which in turn places a limit on the maximum building area permited.
Existing Easements and Other Constraints on Use
Eight of the twelve parcels of the Site (Parcels 1, 3, 5, 6, 7, 8, 9, and 12) have
specific constraints that affect development and use. These constraints include
the following:
• San Diego Gas and Electric (SDG&E) Transmission Lines;
• Coastal Commission Habitat Conservation Area;
• Habitat Management Plan Area;
• HUB Park Site; and
• The Flower Fields.
In the interest of brevity, we have not prepared a description of the nature of
these constraints.; Effectively, these four constraints reduce the potential
developable area of the three parcels along the Agua Hedionda Lagoon,
conditions that RSG has considered in our forecast of fiscal impacts.
Description of the Initiative
Based on an analysis by City staff, the purposes of the Initiative are to do the
following:
• To support the continuation of agriculture in the Site;
• To create a new land use designation of "Coastal Agriculture" and apply it to
the entire Site;
RSG
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FISCAL IMPACT REPORT ON THE
SAVE THE STRAWBERRY GROWING FIELDS ACT OF 2006
City of Carlsbad
• To conserve the Site from inappropriate development and other inconsistent
land uses.
As a result of the local land use policy changes enacted by the Initiative, portions
of the Site would see more significant shifts in permitted uses, provided the
Coastal Commission subsequently approves concurring policies to the LCP. The
significant changes to permitted uses include:
• Prohibit development on Parcel 1 (APN 211-010-24): None of the 463,000
square feet of permitted tourist commercial uses could be developed under
the Initiative.
• Prohibit a property owner from changing to a non-agricultural use in the
future.
• Narrow designation of open spaces to coastal agricultural uses with little
specification on the intended impacts on existing open space uses that are
not currently agricultural in nature.
ASSUMPTIONS
This report primarily focuses on the implications of removing the ability to
develop revenue generating uses for the City. The computation of the near-term
and long-term impacts of this are based on several assumptions regarding the
ultimate use of the Site, both under the current General Plan and as proposed by
the Initiative, as listed below.
Assumed Build Out as Permitted by General Plan
The Site is largely undeveloped presently, although uses varying from retail, to
hotel, to golf course, to passive open space have been envisioned for the area by
the City's General Plan and the Carlsbad Ranch Specific Plan. For the most
part, the majority of the Site is presumed to remain open space, although in
some cases the form of what is characterized open space would possibly differ
from what is on the Site today. More significantly, the General Plan permits the
development of up to 463,000 square feet of tourist-serving commercial uses on
a parcel (Parcel 1) that is largely used for strawberry farming today.
In developing the projection of potential "build out" under the existing General
Plan, RSG took into consideration several existing constraints on the Site,
including the SDG&E transmission lines and environmental easements. Of the
430.32 acre Site, a total of 280.15 acres are constrained and not truly available
for development. Consequently, these constraints were essentially treated as
easements for this study, and RSG did not assume any development of the land
in those locations.
A map of the existing constraints is presented below:
RSG
Page 5
FISCAL IMPACT REPORT ON THE
SAVE THE STRAWBERRY GROWING FIELDS ACT OF 2006
City of Carlsbad
environmental easements along the Agua Hedionda Lagoon and the SDG&E
transmission lines. The remaining 34.74 acres could be developed with up
to 463,000 square feet of tourist commercial uses under the City's LFMP.
Taking into consideration surrounding land uses (which are both a positive
and negative influence on the development potential of this parcel), this
alternative assumes the project would consist of restaurant and destination
retail uses complimenting similar uses nearby.
RSG's pro forma model of the costs of development of this alternative is
presented below.
RSG
Page 7
FISCAL IMPACT REPORT ON THE
SAVE THE STRAWBERRY GROWING FIELDS ACT OF 2006
City of Carlsbad
PROFORMA
CARLSBAD "STRAWBERRY FIELDS" COMMERCIAL DEVELOPMENT
DRAFT FINANCIAL PROFORMA - w/out Hotel
Net Site Size (in acres):
Commercial Acres (%)
Commercial Square Feet
Commercial FAR
Commercial Building (S.F.)
PROJECT COST
ACQUISITION COSTS
34.7
100.0%
1,513,274
0.31
463,000
SF/UNITS/SP PER SF/SP
1,513,274 $0.00 $0
TOTAL ACQUISITION COSTS
DIRECT CONSTRUCTION COSTS:
DEMOLITION
OFFSITE/INFRASTRUCTURE/UTILITIES
SITE COSTS (including landscaping)
COMMERCIAL BUILDING SHELL ONLY
Major Anchor
Junior Anchor
Junior Anchor
Junior Anchor
Junior Anchor
Fitness Club
Bookstore
Destination Restaurant
Restaurants
In-Line Shops
COMMERCIAL BUILDING TENANT IMPROVEMENT COST
Major Anchor
Junior Anchor
Junior Anchor
Junior Anchor
Junior Anchor
Fitness Club
Bookstore
Destination Restaurant
Restaurants
In-Line Shops
FURNITURE FIXTURES & EQUIPMENT (Restaurants only)
GENERAL CONDITIONS
TOTAL CONSTRUCTION
TOTAL LAND & CONSTRUCTION
INDIRECT CONSTRUCTION COSTS:
PROFESSIONAL/CONSULTANT FEES
PUBLIC PERMITS & FEES
IMPACT FEES
TAXES, INSURANCE, LEGAL & ACCOUNTING
MARKETING
COMMISSIONS
DEVELOPER FEE (Administration & Overhead)
CONTINGENCY
TOTAL SOFT COSTS '
FINANCING:
CONSTRUCTION FINANCING
FINANCING FEES
TOTAL FINANCING
TOTAL PROJECT COST
0
1,513,274
1,513,274
150,000
50,000
30,000
30,000
30,000
20,000
17,000
20,000
62,000
54,000
150,000
50,000
30,000
30,000
30,000
20,000
17,000
20,000
62,000
54,000
62,000
72,000
%of
construction
4.0%
5.0%
0.0%
2.0%
1.0%
2.0%
3.0%
5.0%
22.0%
8.3%
1.8%
10.2%
$0.00
$2.00
$2.00
$75.00
$75.00
$75.00
$75.00
$75.00
$100.00
$80.00
$120.00
$100.00
$80.00
$40.00
$35.00
$35.00
$35.00
$35.00
$40.00
$40.00
$100.00
$80.00
$40.00
$10.00
$5.00$1,354
$ per Bldg.
So. Ft.
$36.98
$46.22
$0.00
$18.49
$9.24
$18.49
$27.73
$46.22
$203.39
$77.03
$16.92
$93.95
$190.00
$0
$0
$3,026,549
$3,026,549
$11,250,000
$3,750,000
$2,250,000
$2,250,000
$2,250,000
$2,000,000
$1,360,000
$2,400,000
$6,200,000
$4,320,000
$6,000,000
$1 ,750,000
$1 ,050,000
$1,050,000
$1,050,000
$800,000
$680,000
$2,000,000
$4,960,000
$2,160,000
$620,000
$360,000
$66,563,098
$66,563,098
Total
$2,662,524
$3,328,155
$0
$1,331,262
$665,631
$1,331,262
$1 ,996,893
$3,328,155
$14,643,881
$5,546,126
$1,218,105
$6,764,230
$87,971,209
RSG
Page 8
FISCAL IMPACT REPORT ON THE
SAVE THE STRAWBERRY GROWING FIELDS ACT OF 2006
City of Carlsbad
Parcel 1 (Hotel Alternative) - 391.000 s.f. Commercial Center with 120
Room Hotel Alternative: City staff reports that there is an acute demand for
mid-range hotels in the market area and as one of the few remaining sites
along the coast for such use, this parcel could house such a facility. Given
the views of transmission lines and a power generating facility across
Interstate 5, hotel operators report that even with additional amenities this
property could not be developed to a resort (4- or 5-star) standard.
Consequently, RSG assumed a more realistic hotel development, featuring a
3-star, 120 room facility of approximately 72,000 square feet. The remainder
of the developable area of this parcel would be comprised of 391,000 square
feet of restaurant and retail uses similar to those described above.
A pro forma depicting a breakdown of our construction cost estimates for this
alternative is presented below:
RSG
Page 9 Mft
FISCAL IMPACT REPORT ON THE
SAVE THE STRAWBERRY GROWING FIELDS ACT OF 2006
City of Carlsbad
PROFORMA
CARLSBAD "STRAWBERRY FIELDS" COMMERCIAL DEVELOPMENT
DRAFT FINANCIAL PROFORMA - w/Hotel
Net Site Area (in acres):
Commercial Acres (%)
Residential Acres (%)
Total Acres (%)
Commercial Square Feet
Commercial FAR
Commercial Building (S.F.)
PROJECT COST
ACQUISITION COSTS
TOTAL ACQUISITION COSTS
DIRECT CONSTRUCTION COSTS:
DEMOLITION
OFFSITE/INFRASTRUCTURE/UTILITIES
SITE COSTS (including landscaping)
COMMERCIAL BUILDING SHELL ONLY
Hotel (120 Rooms)
Major Anchor
Junior Anchor
Junior Anchor
Junior Anchor
Fitness Club
Bookstore
Destination Restaurant
Restaurants
In-Line Shops
COMMERCIAL BUILDING TENANT IMPROVEMENT COST
Major Anchor
Junior Anchor
Junior Anchor
Junior Anchor
Fitness Club
Bookstore
Destination Restaurant
Restaurants
In-Line Shops
FURNITURE FIXTURES & EQUIPMENT (Hotel&Restaurant only)
GENERAL CONDITIONS
TOTAL CONSTRUCTION
TOTAL LAND & CONSTRUCTION
INDIRECT CONSTRUCTION COSTS:
PROFESSIONAL/CONSULTANT FEES
PUBLIC PERMITS & FEES
TAXES, INSURANCE, LEGAL & ACCOUNTING
MARKETING
COMMISSIONS
DEVELOPER FEE (Administration & Overhead)
CONTINGENCY
TOTAL SOFT COSTS
FINANCING:
CONSTRUCTION FINANCING
FINANCING FEES
TOTAL FINANCING
TOTAL PROJECT COST
34.7
100.0%
0.0%
100.0%
1,513,274
0.31
463,000
SF/UNITS/SP
1,513,274
0
1,513,274
1,513,274
72,000
150,000
50,000
30,000
30,000
20,000
17,000
10,000
30,000
54,000
150,000
50,000
30,000
30,000
20,000
17,000
10,000'
30,000
54,000
102,000
72,000
%of
construction
4.0%
5.0%
2.0%
1.0%
2.0%
3.0%
5.0%
21.6%
8.3%
1 .8%
10.1%
PERSF/SP
$0.00
$0.00
$2.00
$3.50
$120.00
$75.00
$75.00
$75.00
$75.00
$100.00
$80.00
$120.00
$100.00
$80.00
$40.00
$35.00
$35.00
$35.00
$40.00
$40.00
$100.00
$80.00
$40.00
$35.00
$5.00
$1,391
$ per Bldg.
So. Ft.
$38.42
$48.03
$19.21
$8.41
$16.81
$28.82
$48.03
$207.73
$79.84
$17.52
$97.36
$196.82
TOTAL
$0
$0
$0
$3,026,549
$5,296,460
$8,640,000
$11,250,000
$3,750,000
$2,250,000
$2,250,000
$2,000,000
$1,360,000
$1,200,000
$3,000,000
$4,320,000
$6,000,000
$1,750,000
$1,050,000
$1,050,000
$800,000
$680,000
$1,000,000
$2,400,000
$2,160,000
$3,570,000
$360,000
$69,163,009
$69,163,009
Total
$2,766,520
$3,458,150
$1 ,383,260
$605,230
$1,210,460
$2,074,890
$3,458,150
$14,956,662
$5,748,437
$1,261,795
$7,010,232
$91,129,903
RSG
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City of Carlsbad
• Parcels 4. 10 and 11-9 Hole Golf Course: Under the Carlsbad Ranch
Specific Plan, this 87.97-acre group of parcels were intended to be used as
a golf course, and the most recent discussions with City staff and the
property owners involved a proposal to extend the City's nearby 18 hole
course by adding another 9 holes of golf at this satellite location. The site is
too small to accommodate a regulation 18-hole golf course, parking, and
clubhouse facility, but amply suited for a 9-hole course. Though these
parcels are not contiguous, RSG understands from City Planning staff that a
series of tunnels under Cannon Road exist to connect the parcels for golf
use. In consultation with golf course construction contractors, RSG
assumed development of approximately half of this site for a golf course,
plus another 1,500 square foot building for restrooms, snack bar, and
maintenance equipment storage.
• Parcel 12 - Flower Fields: Parcel 12 has a deed restriction that mandates
the property be used in perpetuity for flower production. Although the
property owner (CB Ranch Enterprises) may modify this obligation under
certain circumstances, RSG has assumed no change to this deed restriction
or use.
• Parcel 8 - AHLF Discovery Center: Parcel 8 contains the 3,500 square foot
visitors' center operated by the Agua Hedionda Lagoon Foundation (AHLF).
This property is essentially "built out"; no change in land use is anticipated by
RSG. As a tax-exempt entity, AHLF does not pay property taxes and
therefore generates no direct fiscal benefits to the City. Any secondary
benefits of this facility, such as increased eco-tourism, have not been
measured for this report.
• Remaining Parcels - HUB Park and General Open Space: The remainder of
the Site is assumed to remain as open space. Part of this area would
include a passive trail system in the area designated as HUB Park by a long-
term lease between the City and SDG&E. Though a trail system has not yet
been constructed, RSG has assumed for this study that 1.2 miles of linear
trails would be constructed by the City.
Assumed Build Out as Permitted by the Initiative
City staff prepared an extensive analysis of the land use policy implications of the
Initiative and generally concluded that the Initiative does not clearly establish the
disposition of existing uses that are not presently agricultural in nature. The
Initiative proposes to narrow the permitted uses on site to so-called coastal
agricultural uses, which would be a new land use designation in the City's
General Plan. The entire 430.32-acre Site would be subject to this designation,
notwithstanding existing land uses and constraints described earlier. No
commercial, hotel, or park uses would be developed.
The Initiative is unclear as to the disposition of the 280.15 acres of constrained
property in the Site, because no allowance has been made for the protection
and/or maintenance of these existing uses.
RSG :
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FISCAL IMPACT REPORT ON THE
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City of Carlsbad
FISCAL IMPACTS
RSG developed a forecast of initial and ongoing fiscal impacts of implementation
of the Initiative, expressed in 2006 dollars. Our findings are presented below.
One-Time and Implementation Costs to City of Carlsbad
Implementation of the Initiative may cost the City between $28.5 and $36.5
million, exclusive of ongoing revenue losses to the City. The impacts include
costs of modifying local codes and ordinances, site acquisition, development fee
losses, acquisition and relocation of the Agua Hedionda Lagoon Foundation
Discover Center, offset by a modest savings in recreational trail improvements
proposed for the Site.
The table below summarizes the range of costs anticipated to implement the
Initiative.
One-Time and Implementation Costs
Update Local Codes and Ordinances
Acquisition of Parcel 1
Acquisition of Parcels 4, 1 0 & 1 1
Acquisition of Other Non-City Owned Parcels
Development Fee Losses
Acquisition & Relocation of AHLF Discovery Center
Savings on HUB Park Trail Improvements
TOTAL
Low Range Cost
$100,000
8,400,000
6,200,000
6,400,000
7,226,000
700,000
(542,000)
$ 28,484,000
High Range Cost
$250,000
9,900,000
6,200,000
12,800,000
7,226,000
700,000
(542,000)
$ 36,534,000
These impacts are described below.
Updating Local Codes and Ordinances
If approved by the voters in November, City staff would be responsible for the
costs for pursuing approval for the land use policy, LCP and zoning, changes
from the California Coastal Commission. This would involve preparing and
processing amendments to the General Plan, the Agua Hedionda Local Coastal
Program (LCP), the Zoning Ordinance, the Carlsbad Ranch Specific Plan, and
the Habitat Management Plan for Commission consideration. Because of
several inconsistencies between the LCP and the proposed Initiative, the cost,
time and likelihood that the necessary LCP amendments may be ultimately
approved are uncertain. These efforts will involve staff time, legal services, and
consultants. RSG estimates that the cost for these endeavors could range from
$100,000 to $250,000, provided environmental review of these activities does not
result in a significant level of mitigation costs borne by the City.
Acquisition Cost of TR Property (Parcel 1)
The Initiative takes away development rights from private property owners and
narrowly restricts future use to agricultural. Today, RSG estimates that one
would be permitted to develop approximately $90 million of improvements on
RSG
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FISCAL IMPACT REPORT ON THE
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City of Carlsbad
Parcel 1 under the current TR designation in the General Plan. This would
effectively go away with the Initiative.
Given the potentially significant economic loss to a property owner between the
existing and proposed land use designations, a property owner could file an
inverse condemnation case against the City and force the City to acquire this
parcel for fair market value. Even without such a claim, the only way for the City
to guarantee that the property is used (not simply designated) for agricultural use
may be to acquire the property at fair market value. Fair market value would
likely be based upon the highest and best use of the property under the existing
TR designation.
RSG is not an appraiser, and ultimately the opinion of value would come from a
certified appraiser if the City pursued acquisition. For the purposes of estimating
the fiscal impact to the City, RSG estimated the potential acquisition cost using a
land residual analysis that computes the ultimate land value if the property had
developed under either alternative. Based on this methodology (commonly used
by appraisers to determine the value of vacant land), RSG believes the cost to
acquire the property could be as much as $9.9 million, or $6.54 per square foot.
Acquisition of Carlsbad Ranch CoJSDG&E Golf Course Site (Parcels 4,10, & 11)
The Carlsbad Ranch Specific Plan permits golf course uses as part of the open
space designation on Parcels 4, 10, and 11. The Initiative would not permit such
development, and it is conceivable that the City may need to purchase these
parcels based on the assumption that they would have been developed for golf
uses.
In general, golf course land is much less valuable than commercial land.
Carlsbad Ranch Company recently was asking approximately $2.00 per square
foot for their portion of the site. Based on a residual analysis wherein we
deducted the construction cost of the course from the total value of the project
upon completion, RSG estimates the cost to acquire land would be closer to $6.2
million for all three parcels, or $1.62 per square foot.
Acquisition of Remaining Seven Parcels Not Owned by the City
Aside from Parcel 9 which is currently owned by the City of Carlsbad, all or
portions of the remaining 292.95 acres of the Site may need to be acquired by
the City under the same presumption that the loss of ultimate development rights
could be construed to be a taking and the need to preserve agricultural uses in
the Site may need to be accomplished by the City taking fee ownership.
In fact, there is some precedent to follow in the Flower Fields case. In its
agreement with the City, the owner of the Flower Fields (Parcel 12), must provide
the City the right of first offer if it desires to sell the property. A key difference
between the existing Flower Fields agreement and the proposed Initiative is that
the City has the discretion to modify the terms of the agreement and use
presently. This flexibility is not provided in the Initiative, and could result in a
claim that development rights may be lost if the Initiative is enacted.
RSG
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FISCAL IMPACT REPORT ON THE
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City of Carlsbad
Another factor in implementing the Initiative is that the City cannot legally
condemn another public agency's property without its consent. Specifically,
Parcel 5, located at the east end of the Site, is owned by the State Department of
Fish and Game. The City cannot force Fish and Game to sell the 41.37-acre
property, nor can it dictate how the Department can use their land. For this
parcel, the City may not be able to implement the intent of the Initiative
regardless of the costs to acquire the parcel.
Assuming the Department of Fish and Game would be a willing seller, and that
the remaining site would be acquired at a cost equivalent to the value of Coastal
Sage Scrub habitat or irrigated agricultural land, RSG estimated the cost of
acquiring the 292.95 acres of land. Our assumed land acquisition cost would
range from a low of $0.50 per square foot for Coastal Sage Scrub habitat (which
exists undisturbed in some areas of the Site), to a high of $1.00 per square foot
for agricultural land. Based on these assumptions, the cost to acquire the
balance of the Site could range from $6.4 million to $12.8 million.
Foregone Development Fees
As detailed later in this report, implantation of the Initiative would prohibit
development that would generate nearly $6.9 million in fees to reimburse the City
for completed infrastructure projects in the area. In addition, the City would also
not receive $350,000 in agricultural mitigation fees that could have been
generated by the development of the Site.
Relocation of AHLF Discovery Center
The Initiative does not call for the preservation of the AHLF's Discovery Center,
located on a 2.60-acre parcel owned by the Foundation. In 2003, the City
provided a $80,000 grant to the Foundation to complete the $582,000 project.
The land and the 3,500 square foot visitors' center were donated to the
Foundation from Hillman Properties West Inc. in 1999.
It is not clear whether the Initiative would permit the Discovery Center as part of
the Coastal Agricultural designation it proposes, as it is not part of any
agricultural operation. Moreover, as the Initiative would move to shift the existing
environmental conservation areas to agricultural use, it would be difficult to
expect that AHLF would be amenable to continuing operating a visitors' center
without any environmental assets.
Consequently, it is reasonable to assume that the transition of the Site to
agricultural uses as proposed by the Initiative could result in a need to acquire
the AHLF property and visitors' center and relocate the Foundation to a new
location. While RSG has not investigated whether relocation is practical for the
Foundation, we do estimate that the costs to undertake this endeavor would
exceed the original cost of the facility and site. Conservatively, RSG estimates
that acquisition and relocation expenses to the City may reach $700,000.
RSG
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City of Carlsbad
Savings in Development of Trails through HUB Park
The City's Park Development Manager reports that the City has planned on
developing a 1.2 mile trail system through HUB Park. If this property were
designated for agricultural use as a result of implementation of the Initiative,
these improvements are presumably not needed. The cost of constructing 1.2
miles of trails and special transitions (stairways to the lagoon, for example) would
cost approximately $542,000, and the City could save this expense if the
Initiative were approved.
Ongoing Net Fiscal Impact to City of Carlsbad
RSG determined that build out of the Site under the terms of the proposed
Initiative could result in lower municipal revenues, little direct impact on municipal
service costs, and potentially significant costs to maintain coastal agricultural
operations on the Site.
The table below summarizes RSG's annual economic impact of this initiative,
exclusive of one-time and implementation costs described earlier. We estimate
the loss in potential revenue to the City and Redevelopment Agency could range
from $2.8 to $3.0 million annually.
Annual Fiscal Impact of development at buildout
City General Fund
Property Tax Revenue
Sales Tax Revenue
Transient Occupancy Tax Revenue
Business License Revenue
Less: Direct General Fund Expenditures
Less: Costs to Maintain Agricultural Operations
Redevelopment Commission
Net Housing & Nonhousing Tax Increment
Carlsbad Tourism BID
Assessment Revenue
TOTAL ALL FUNDS (ANNUALLY)
Without Hotel
$ 2,098,000
66,000
1,966,000
0
69,000
(3,000)
Unknown / Pot
$ 704,000
704,000
0
0
$ 2,802,000
With Hotel
$2,215,000
67,000
1,601,000
493,000
57,000
(3,000)
sntially Significant
$ 729,000
729,000
33,000
33,000
$ 2,977,000
Property Taxes, Including Redevelopment Property Tax Increment
Based on the 2005-06 assessment roll and the City's share of the property taxes
provided by the County Assessor and Auditor-Controller, RSG estimates that the
City collected about $6,400 in property tax revenue in 2005-06.
By prohibiting development of commercial and golf course uses anticipated for
the Site, the Initiative would eliminate a much greater amount of property tax
revenue to both the City, and the City's Redevelopment Agency, because Parcel
1 is located within the South Carlsbad Coastal Redevelopment Project Area,
Using the development assumptions described in this report, RSG projected the
RSG
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FISCAL IMPACT REPORT ON THE
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City of Carlsbad
annual revenue loss to the City and Redevelopment Agency upon build out of
these parcels. Without a hotel on Parcel 1, RSG estimates that the total property
tax revenue to the City General Fund would equal approximately $66,000
annually. With a hotel, this amount increases to $67,000 annually. This amount
consists of property tax revenues from the parcels outside the Redevelopment
Project Area and the City General Fund's share of a statutory taxing agency
payment for Parcel 1 from the Redevelopment Agency for the portion of the Site
within the Redevelopment Project Area.
In proportion to the City's property taxes, the Redevelopment Agency could
stand to lose a much greater amount of revenue because Parcel 1 is within the
Redevelopment Project Area and virtually all development that occurs on the
parcel would result in property tax increment revenue to the Redevelopment
Agency. Without a hotel, RSG estimates that the Redevelopment Agency's tax
increment revenue for affordable housing and non-housing projects would
decrease by $704,000 annually. With a hotel, the loss to the Redevelopment
Agency would be approximately $729,000.
Sales Taxes, Including Property Tax In-Lieu Revenue
At present, the Site does not generate any sales tax revenue. Without the
prohibitions in the Initiative, development of retail uses would have been
anticipated at Parcel 1. Carlsbad receives sales tax revenues 0.75 percent of
taxable sales, plus a property tax in-lieu payment equal to another 0.25 percent
of taxable sales. Once the states deficit reduction bonds are paid off in 2014, the
property tax in-lieu payment would convert to sales tax revenue and the sales tax
apportionment would equal 1.00 percent.
RSG estimated the amount of sales tax and property tax in-lieu revenues based
on the assumption that development of Parcel 1 would likely yield several unique,
destination retailers given the proximity to similar visitor serving retailers in the
area, such as LEGOLAND California, Car Country Carlsbad, and the Carlsbad
Premium Outlets. Depending on the specific retailer assumed to be at the
project, taxable sales are estimated to range from $195 to $550 per square foot
for this development.
Inclusive of property tax in-lieu revenues, the City could receive revenues from
taxable sales totaling $1,966,000 annually without a hotel component. With a
hotel, RSG estimates that revenues from taxable sales could be reduced to
$1,601,000 due to the reduction in the square footage of retail space and a
corresponding reduction in the amount of taxable sales.
RSG
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City of Carlsbad
Transient Occupancy Taxes
If a hotel were constructed on Parcel 1, the City would receive transient
occupancy taxes equal to 10 percent of gross room revenue. The City's
Economic Development/Real Estate Manager has received inquiries recently
from hotel developers who have expressed interest in the Site, specifically for a
3-star hotel. The City's occupancy rate is quite high for this category of hotel
product, so the demand for additional 3-star rooms appears to be supportable.
Accordingly, RSG estimated the annual amount of transient occupancy tax
revenues for a 120-room, 3-star hotel. Based on a survey of comparable hotels
nearby, we assumed an average room rate of $150 per night and a 75 percent
occupancy rate. This occupancy rate takes into consideration the demand for
additional rooms and the standards sought by hotel investors.
Based on these assumptions, RSG estimates that a hotel on Parcel 1 could
generate approximately $493,000 annually.
Business License Fees
The City levies a business license fee equal to $0.35 per $1,000 of gross
receipts. Gross receipts were based on taxable sales estimates described under
Sales Taxes above. Without a hotel, RSG estimates that the City could receive
approximately $69,000 annually. With a hotel, business license fees could drop
to $57,000.
Tourism Business Improvement District Assessments
The Carlsbad Tourism Business Improvement District (BID) assessment fee was
recently adopted in November 2005 to levy $1 per room per night to fund
programs to promote tourism in the City. If a hotel were constructed as permitted
under the existing General Plan, the BID would experience an increase in
assessment revenues to expand its programming. Based on the assumptions
described earlier, a 120-room, 3-star hotel could generate BID revenues totaling
approximately $33,000 annually.
Savings in Operating Expenditures for the General Fund
Based on discussions with Police and Community Development Department
staff, RSG has concluded that there would be little direct costs of providing
municipal services to the Site upon build out under the current General Plan.
With the exception of trail maintenance described in the next paragraph, the
services provided to the Site would be similar to services already provided to
adjacent uses, and staff does not foresee the need to add additional personnel,
supplies or services to meet the needs of the Site at build out.
HUB Park was originally planned to contain approximately 1.2 miles of passive
trails, so designating the use of this property to agricultural may relieve the City
of the obligation to fund trail maintenance. According to the City's Park
Development Manager, trail maintenance costs approximately $2,750 per mile
per year. RSG estimates an annual savings of trail maintenance costs of $3,000.
RSG '
Page 17
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City of Carlsbad
Potential Ongoing Subsidies to Maintain Agricultural Operations
Cities in California manage agricultural resources through a series of planning
initiatives to designate areas for agricultural use. However, based on RSG's
research, consultations with planning staff, and discussions with the County
Farm Bureau Manager, the Initiative's proposed maintenance of agricultural use
is unprecedented, and poses a unique and potentially significant fiscal liability to
the City in order to enforce the Initiative's intent.
The key difference is between designating land for a specific use, versus
requiring that a particular use remain in operation. There are several factors
outside of land use policy that create demand for the private sector to operate
growing fields, including water supply, environmental mitigation, demand, and
competition locally as well as internationally. The California Central Valley has
experienced a dramatic shift in demand for agricultural uses as a result of these
factors.
Presently, the most extensive enforcement power the City has over maintaining
agricultural use relates to the bilateral agreement between the City and CB
Ranch Enterprises to maintain operation of the Flower Fields on Parcel 12.
However, the agreement does allow for the owner to sell the property and modify
the terms of the agreement, and it cannot be concluded that the City would be
forced under the terms of the agreement to continue operation of the Flower
Fields.
The Initiative goes further than the Flower Fields agreement, by calling for a
perpetual maintenance of agricultural uses, potentially in locations where such
uses are not in operation currently. It is unclear what is to happen if the demand
for strawberries, for instance, changes and the property owner is unable to find
an operator willing to farm the Site. Potentially, the City ultimately could be
responsible for subsidizing farmers to insulate them from factors affecting
demand for growing fields in this area.
Because of the unparalleled scope of this Initiative and the lack of definition to
where such uses could be applied, the amount of such subsidies are not
predictable at this time, but could be significant. If the City takes ownership of
the Site to enable the implementation of the Initiative, additional costs to the City
may be involved, such as mitigation for runoff, liability insurance, property taxes,
and other costs.
IMPACT ON FUNDING FOR INFRASTRUCTURE
The City funds infrastructure construction via a series of fee programs. By
prohibiting development as planned and programmed into the City's fee program,
the Initiative would remove these properties as a source of fee revenue. City
staff has reported that the fees are reimbursing the City for existing
improvements that have already been constructed, such as the bridge and
thoroughfare at Cannon Road. Consequently, the loss of infrastructure revenue
RSG
Page 18
FISCAL IMPACT REPORT ON THE
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City of Carlsbad
would cause the City a funding shortfall that could not be recouped through a
reduction in infrastructure improvements.
RSG consulted with City Engineering staff to estimate the potential infrastructure
revenue loss that could be suffered if Parcel 1 and the golf course site (Parcels 4,
10 and 11) were not developed as envisioned under the current General Plan.
Staff reports that the fee is not affected by the alternative of a hotel use on Parcel
1, so the estimates presented below are generally representative of the fee
losses under both scenarios.
City Fee Estimates
Infrastructure Fees
Drainage Area Fee
Sewer Fee
City Water Fee
Public Facilities Fee
Zone 13 Fee
Traffic Impact Fee
Bridge & Thoroughfare Fee
Other Fees
Agricultural Mitigation Fee
TOTAL ALL FEES
Parcel 1
(Commercial
Use)
$ 6,296,000
250,000
253,000
43,000
1,051,000
185,000
995,000
3,519,000
$ 350,000
350,000
S 6,646,000
Parcels-*, 10, &
11
(Golf Course)
$ 580,000
372,000
1,000
120,000
0
1,000
32,000
54,000
so
0
$ 580,000
Total
$ 6,876,000
622,000
254,000
163,000
1,051,000
186,000
1,027,000
3,573,000
$ 350,000
350,000
$ 7,226,000
As shown above, implementation of the proposed Initiative could result in a
$6,876,000 loss of infrastructure fee revenue to the City. These fee losses may
cause the City to seek other sources of financing this shortfall, including possibly
an adjustment to the fee program to absorb these losses as other projects build
out.
In addition, the City would lose $350,000 of agricultural mitigation fees as a result
of the property not converting to a non-agricultural use.
IMPACT ON THE COMMUNITY'S ABILITY TO ATTRACT AND
RETAIN BUSINESS AND EMPLOYMENT
The Initiative would remove the potential of developing approximately 463,000
square feet of commercial uses on Parcel 1, which poses the most significant
impact on the community's ability to attract and retain business and employment.
The supply of commercial land along Interstate 5 is limited in North San Diego
County, and this parcel is well suited to accommodate tourist-serving commercial
uses to compliment similar uses nearby.
RSG
Page 19
FISCAL IMPACT REPORT ON THE
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City of Carlsbad
Based on application of conservative employee generation standards, RSG
estimated the amount of businesses and employees that could have been
accommodated by the development of 463,000 square feet of space. Industry
generation standards dictate approximately 2 employees for every 1,000 square
feet of commercial space, and 1 employee for every hotel room. Without a hotel,
approximately 926 employees could have been employed by a non-hotel
development on Parcel 1, and 902 employees could have been employed if the
parcel contained a hotel.
IMPACT ON EXISTING BUSINESS DISTRICTS AND DEVELOPED
AREAS DESIGNATED FOR REVITALIZATION
Impacts on Existing Business Districts
The Site does not contain any existing business districts, although there are
several business park and commercial areas nearby. RSG does not anticipate
any direct impacts on existing business districts.
Areas Designated for Revftalization
Parcel 1 lies within the South Carlsbad Coastal Redevelopment Project Area,
and the removal of this site would result in the lost opportunity for tax increment
revenue to be generated by the Tourism/Recreational Commercial uses that
would be permitted if the Initiative is not enacted.
On July 18, 2000 the City Council adopted Ordinance No. NS-553 that
established the Redevelopment Plan for the 555.5-acre South Carlsbad
Redevelopment Project Area ("Redevelopment Project Area"). The
Redevelopment Project Area is one of two such revitalization areas of the City,
the other located in the downtown village area. The Redevelopment Plan
authorizes the Carlsbad Redevelopment Agency ("Redevelopment Agency") to
implement a 30-year revitalization program throughout the Project Area.
At the time of its adoption, the Redevelopment Project Area contains 43 parcels
of property, the majority of which is located west of Interstate 5, along Carlsbad
Boulevard. The only parcel of the Redevelopment Project Area located east of
Interstate 5 is Parcel 1, which is also located within the proposed Initiative Site.
The map below presents the boundaries of the Redevelopment Project Area.
RSG : ~
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FISCAL IMPACT REPORT ON THE
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City of Carlsbad
RSG estimates that the Redevelopment Agency would not realize between
$704,000 and $729,000 annually if the parcel is not developed.
Removal of the development potential of Parcel 1 may adversely affect the
Redevelopment Agency's ability to implement a comprehensive redevelopment
program in the Project Area. In fiscal year 2004-05, the County Auditor-
Controller reported that the Project Area generated approximately $269,000 in
revenue. Although this tax increment revenue generally increases with each
year, the Project Area is not realizing the rate of growth anticipated when the
Redevelopment Plan was adopted and the actual receipts are less than half what
was projected for fiscal year 2004-05.
Consequently, the Redevelopment Agency needs to make significant program
adjustments in light of the rate that revenue has been generated initially, without
taking into consideration what may be the largest piece of undeveloped land
within the Project Area. The further loss of tax increment revenue would not only
further delay implementation of needed Project Area improvements (such as
redevelopment of the Ponto area and improvements in the vicinity of the Encina
Power Plant), but also slow the City's affordable housing production program. Of
the $704,000 of potentially lost tax increment revenue associated with Parcel 1
alone, approximately $176,000 was to be deposited into the Redevelopment
Agency's affordable housing fund. As a result, affordable housing projects both
inside and outside the Project Area could also be adversely affected by
implementation of the Initiative.
RSG ~
Page 22 (j) (JT
Attachment 3
Attachment 4
"LT
_TL
ADOPTED MAY, 1982
-*
Kelly Ranch LCP Amendment
July 11,2000
Habitat Management Plan LCP Amendment
August 8,2003
city of carlst»aci local coeisteU program
The lagoon provides for a wide range of water related uses, including aquaculture, boating, •
water skiing, fishing and wildlife habitat. The outer lagoon is used primarily for fishing, and
provides cooling water for the SDG&E power facility. The middle lagoon is used for sailing
and swimming. The western half of the inner lagoon is used for power boating and water
skiing, while the eastern end of the lagoon contains environmentally sensitive wetland and
habitat areas.
The land use categories and residential density ranges utilized in the land use map and policy
statements are based on those contained in the Carlsbad General Plan. This provides for
consistency between the Agua Hedionda Plan and the General Plan, and allows for eventual
integration of the two documents. Zoning ordinances and designations will be developed in
the implementation phase of the Agua Hedionda Land Use Plan.
The various densities of residential uses indicated on the map will be modified in actual
practice by several considerations. Reservations of public access easements, preservation of
defined view-corridors, and limitations on grading are all factors that will tend to reduce the
potential yield of living units per acre. Projects within the areas designated RM, RMH, and
RH which exceed the minimum guaranteed General Plan density will be subject to additional
review by the City Council. The Council may allow up to the maximum General Plan density
only if the necessary public facilities are available to serve the project, the higher density will
not adversely impact the surrounding areas, and the development provides unique onsite
amenities, public recreational opportunities, preserves/enhances unique geological
environmental features, or provides affordable housing.
Land use designations, must be considered in conjunction with other sections of this plan.
Certain parcels, because of unique environmental or ecological considerations, will be limited
for development in some ways that are not applicable to other parcels having the same use
designation. For the most part, these limitations, requiring a greater degree of creativity on
the part of the land planner, can be an asset rather than a liability to the owner, since their
purpose is to enhance desirable features of the land and the natural environment.
Policies
1.1 Land uses in the Agua Hedionda Plan area shall be consistent with those indicated on
the Land Use Map (Exhibit C).
13
14
b) As secondary uses, in the interim period while aquaciilture alternatives are being
studied, other uses may be permitted1 'which would necessitate minimal site
disturbance or capital investment, including active recreation (fishing, tent
camping, etc.), beach access parking, short-term recreational yehicle parking, and
temporary accessory commercial facilities (bait-and-tackle shop, food concession,"
etc.);
c) All uses shall be regulated by conditional use permit. All proposed uses shall be
conditioned to provide all access improvements required by this plan, and shall
provide peripheral landscaping which at maturity will screen all objectionable
improvements (i.e., aquaculture facility, outside storage, parking areas, etc.) as
viewed from Carlsbad Boulevard.
1.9 Building height shall be limited to a maximum of 35 feet. Building setbacks and lot
coverage shall be regulated by the applicable zoning designation, except as
specifically modified in this plan.
L10 The 45 acre parcel owned by SDG&E located on the south shore immediately east of
the freeway shall be designated TS,. Travel Services. Conversion of the property to
commercial development shall be subject to a future specific plan and the applicable
policies relating to agricultural conversion. A future specific plan will be required by
the City for development of the property.
17
Discussion
Agriculture in the Agua Hedionda area is dependent"upon a wide range of factors. The soil
resource is not as ideal as that in other parts of the State but is well-suited to the existing
agricultural operations. Climate is the major- factor which has determined the success of the
area's agriculture since it allows production during months when agriculture is precluded in"
competing areas. Water "is a critical factor, and both direct and indirect energy costs
contribute significantly to agricultural costs. Labor also represents a substantial proportion of
costs; its future depends to a large extent on government policies toward undocumented
aliens. Access to certain Carlsbad agricultural areas is difficult during certain times of the
year. Improvement of access would involve a trade-off between production gains from better
access and the potential for increased vandalism.
Agricultural activities in the plan area are limited to south shore properties. This area is
contiguous with other large agricultural lands to the south and east.
Policies
2.1 Conversion of agricultural property shall be consistent with Coastal Act policies, and
the policies of this plan.
2.2 The south shore agricultural lands shall be designated "Open Space." This area shall
be zoned "Exclusive Agriculture" in the implementation phase of the plan.r2.3 Conversion of the 45-acre SDG&E south shore property shall be subject to the
following conditions:
a) Prior to development SDG&E shall record a permanent open space easement over
the remaining agricultural lands in favor of the City of Carlsbad. Said easement
shall limit uses to agriculture, utility right-of-way and maintenance, roadways, and
recreation trails that do not interfere with agricultural operations.
b) SDG&E shall provide a written report demonstrating to the satisfaction of the City,
that preservation of the site is not necessary to assure reasonable expansion
opportunities for the Encina Power Plant in accordance with Coastal Act Section
30413(b), and that future expansion could reasonably be accommodated at the
present power plant site. Said report shall be a requirement of a future specific
development plan for the property.
19
c) Prior to issuance of a permit for development of the parcel, the owner shall make a
portion of the site available for development as a public recreational use if the City
finds that current or future recreational needs require the development of such uses
in the south shore portion of the Land Use Plan area.
d) In the event that the Carlsbad Local Coastal Plan is amended to allow for a City-
sponsored agricultural program, SDG&E may apply for inclusion in the amended
program.
20
Major boating facilities include Snug Harbor and Whitey's Landing, both located on the north
shore of the inner lagoon. All three lagoon areas prDvide passive activities such as walking,
hiking, wildlife observation and informal viewpoints.
Policies
6.1 Whitey's Landing and Snug Harbor shall be designated for continued recreational-
commercial use. Expansion of existing facilities at these locations shall be encouraged
(Exhibit "B").
6.2 Construction of private docks, boat storage and launching facilities shall be subject to
approval by the U.S. Army Corp of Engineers, the State. Department of Fish and
Game, the City of Carlsbad and the California Coastal Commission, consistent with
Coastal Act Policies.
• The SDG&E agricultural conversion property adjacent to the 1-5 freeway, shall be
designated Travel Services. This will allow for 45 acres of additional visitor-serving
commercial uses.
6.4 If demand for boatingAaunching facilities cannot be accommodated by existing
development, and it can be demonstrated that the lagoon will not be adversely affected
by additional boating access and is consistent with Coastal Act Policies, the City
should develop public or joint public/private boat facilities in the area of Hoover
Street.
6.5 The Encina fishing area on the outer lagoon should be maintained as a public activity
area.
6.6 If boating activities on the inner lagoon reach such a high level of use that public
safety is endangered or the lagoon ecosystem is being adversely impacted, the City
may act to restrict maximum carrying capacity, reduce maximum speeds and limit the
horse-power of boats.
6.7 The present recreational uses of the lagoon shall be maintained and where feasible,
expanded.
45
49
Attachment 5
-77
ATTACHMENT FIVE
SPECIAL LEGAL COUNSEL RESPONSES
TO S.D.G. & E. QUESTIONS OF THE
CITIZENS' COMMITTEE
Question 1:
Both Proposition A (Strawberry Fields Initiative) and Proposition C (City-sponsored
Initiative) appear to have been proposed as a reaction to a specific planned development
of the Encina Property, certain elements of which would have protected critical open
space areas, increased public access to open space and created public parkland. It has
been suggested that one of the underlying motives of Proposition A is to eliminate
development options for the Encina Property and, consequently, put the development
agenda of an alleged financial contributor to Proposition A in a more favorable position.
How does the City intend to demonstrate that Proposition A and Proposition C do not
unfairly target Encina Property and are not enacted with the improper motive for
defeating the development of the Encina Property, and thus are not arbitrary and
discriminatory enactments in excess of the City's police power.
Answer: The question relates to the motives of the backers of the Strawberry Fields
Initiative. Normally, the motives of a Legislator cannot be used to invalidate a legislative
enactment. Normally, legislation can only be found invalid based on the actual language
of the enactment, not the motivating factors behind its adoption. While there are cases
and situations where improper motives have invalidated legislation, we are not aware of a
case or circumstance where a City is required to investigate the motivations behind an
Initiative supporter.
Question 2:
Both Proposition A and Proposition C cite, as one of their main objectives, the
preservation of open space within the City and, in particular, coastal agriculture.
However, any development of the Encina Property would also protect critical open space
areas, increase public access to open space and create public parkland. The development
of Encina Property might also provide affordable housing, which the California
Legislature has declared to be of statewide importance. How does the City intend to
demonstrate that the use restrictions contained in both Proposition A and Proposition C,
and in particular, the coastal agriculture use restrictions, are rationally related to the
general public welfare? How does the City intend to demonstrate that such use
restrictions promote the general public welfare, rather than merely the interests of certain
individuals and adjacent property owners, and thus are not arbitrary and discriminatory
enactments in excess of the City's police power?
Answer: The question deals with the impact of the Initiatives of the City's regional "fair
share" housing requirements. Currently, none of the parcels are zoned for housing
development. The City's housing obligation is not limited to one parcel or group of
parcels as stated above, the State Legislature may impose housing laws which may affect
parcels covered by these Initiatives, but have not done so at this time.
Question 3:
As stated above, both Proposition A and Proposition C cite the preservation of open
space and coastal agriculture as one of their goals. However, the character of the
property surrounding the Encina Property is overwhelmingly commercial and residential.
Both Proposition A and Proposition C would single out the Encina Property for uses
inconsistent with the surrounding area, creating an isolated area that will become an
island in a sea of less restrictive uses. How does the City intend to demonstrate that the
use restrictions contained in both Proposition A and Proposition C do not constitute
oppressive and invalid spot zoning, granting to SDG&E fewer rights than the owners of
surrounding property and requiring SDG&E to use its property for uses inconsistent with
the area?
Answer: The issue of "spot zoning" relates to the improper adoption of a zoning
restriction that only targets a small area of the community for arbitrary treatment not
applied to neighboring parcels. For the most part, this argument would depend on a
variety of factors. One factor that argues against "spot zoning" is the fact that the parcels
were already subject to the "agricultural" and "open-space" zoning called for in the
Strawberry Fields and City Initiatives. The difference is the permanency of the
restrictions, not their initial application. Spot zoning may be a problem in the future as
the rest of the City develops, but it is not a serious legal concern at this time, considering
the existing rules.
Question 4:
Proposition C states that the purpose of the Initiative is to ensure that the Encina Property
is "preserved in open space and that farming is allowed to continue as long as it is viable"
and would expressly prohibit any residential, commercial or industrial development of
the Encina Property. However, Proposition C would permit the construction of civic
buildings on the Encina Property. How does the City intend to disprove the inference
that one of the underlying objectives of Proposition C is to depress the fair market value
of the Encina Property by prohibiting its improvement or development, thereby allowing
he City to acquire land at a reduced price for the development of its civic buildings, and
that Proposition C is not being enacted for an improper legislative motive?
Answer: The argument being made is that the two Initiatives amount to unreasonable
pre-condemnation conduct. (Klopping v City ofWhittier (1972) 8 Cal.3d 39). A City
cannot use its zoning power to depress the price of property prior to condemning it.
Evidence of improper pre-condemnation conduct could result in damages against the City
for trying to acquire property at less than the fair market value. This office is not aware
of any such conduct.
Question 5:
One of the main objectives of both Proposition A and Proposition C appears to be the
restriction of the use of the Encina Property to the growth of strawberries, as evidenced
by the consistent use of the term "Strawberry Fields" throughout both propositions.
SDG&E notes that the term "Strawberry Fields" is a misnomer, since the majority of the
257 acres that comprise the Encina Property is not used for the production of
strawberries. In any case, no studies or analyses have been conducted, and no evidence
has been presented, that strawberry production is vital to the public health, safety or
general welfare of the region, especially given the vastly different character of the
surrounding area. How does the City intend to demonstrate that the continuation of
strawberry production bears a substantial and rational relationship to the regional public
welfare, and thus such a restriction is not an arbitrary and unreasonable enactment in
excess of the City's police power?
Answer: The question is more of a political or policy question related to the appropriate
land use for the parcels subject to the two Initiative Measures.
Question 6:
As stated above, both Proposition A and Proposition C would restrict the use of the
Encina Property to open space, and in particular, coastal agriculture. While much of the
Encina Property is already designated as open space in the General Plan, a 45_acre
portion of the Encina Property is designated as travel/recreational. Both Proposition A
and Proposition C would change the designation of this portion to open space, despite
previous assurances that Proposition C would maintain the current General Plan
designations of the Encina Property. However, it is unlikely that agricultural uses of the
Encina Property will continue to be economically viable, especially given the vastly
different character of the surrounding areas. Furthermore, the costs associated with the
continued maintenance and preservation of the Agua Hedionda Lagoon, such as the cost
of stormwater prevention programs, far outweigh the revenues generated under
Proposition A or Proposition C. Accordingly, Proposition A and Proposition C, if
enacted, would deprive SDG&E of substantially all reasonable and economically viable
use of the Encina Property. How does the City intend to demonstrate that the enactment
of Proposition A or Proposition C would not constitute and unconstitutional taking, and
that Proposition A and Proposition C are not subject to invalidation? Alternatively, how
does the City intend to compensate SDG&E for the taking of the Encina Property that
will occur if Proposition A or Proposition C is enacted? If proposition A or Proposition
C is enacted, who will pay the costs associated with the continued maintenance and
preservation of the Agua Hedionda Lagoon?
Answer: The question assumes several facts that lead to the conclusion that a "taking"
will occur if the Strawberry Fields or City Initiatives are adopted. The discussion above
and the discussion at the meeting of June 15th cover the standards applicable to the
scenario raised. The utility company would have to seek a change in land use with a
meaningful application presented before the City. The Council would have to determine
if a "taking" would occur, given the facts that are presented at the public hearing.
Question 7:
It does not appear that the City has previously announced or promoted any
comprehensive plan of preserving coastal agriculture in the region. Rather, as stated
above, it appears that Proposition A and Proposition C were proposed as a reaction to
specific planned development of the Encina Property. How does the City intend to
demonstrate that Proposition A and Proposition C do not single out the Encina Property
for unduly harsh treatment, but apply to an entire area, and produce a fair and equitable
distribution of the burdens imposed by each of them? More generally, how does the City
intend to demonstrate that the severe economic impact imposed by Proposition A and
Proposition C on the Encina property is fair in light of the arguably narrow public benefit
accruing from them?
Answer: This question attempts to point out an unfair burden placed on the subject
properties to preserve agricultural lands. The premise of the question states that the City
has no plan for agriculture. However, as pointed out in Section A(2) above, the City's
General Plan recognizes the continued existence of agricultural uses on these parcels.
The difference the two Initiatives have with the current policy is making these restrictions
permanent. Since Courts are usually deferential to the public policy choices of cities, the
question will still probably come down to a "takings" analysis.
Question 8:
The Encina Property is currently zoned "Public Utility" and is used for public utility
purposes, which are governed by the California Public Utilities Commission (CPUC).
The City may not regulate matters over which the CPUC has been granted jurisdiction,
and any City laws, statutes, codes, ordinances, rules or regulations purporting to do so are
preempted by the CPUC. Neither Proposition A nor Proposition C takes into account the
current public utility uses of the Encina Property. While Section 3.10 of Proposition A
refers to continued use of SDG&E's transmission corridor, SDG&E owns all of the
Encina Property, and the City may not restrict the use of the Encina Property for public
utility purposes. How does the City intend to amend Proposition A and Proposition C to
acknowledge these essential public utility functions? Is the City aware that the
restrictions contained in Proposition A and Proposition C, as applied to public utility
functions, are preempted by the CPUC?
Answer: This question relates to the discussion above of the preeminent authority of the
Public Utility Commission over public entities. As discussed in Section B above, the
City's laws, including those imposed by Initiative cannot preempt state law. (Committee
of Seven Thousand v. City of Irvine (1988) 45 Cal.3d 491). To the extent that actual
restrictions in the two Initiatives conflict with a specific PUC General Order, law or
regulation, those portions of the applicable Initiative Measure would be invalid.
Question 9: SDG& E is a public utility, and any costs of any restrictions placed on the
Encina Property by Proposition A or Proposition C, or any litigation regarding them,
must be borne by SDG&E's ratepayers. For instance, the costs associated with the
continued maintenance and preservation of the Agua Hedionda Lagoon, such as the cost
of stormwater prevention programs, far outweigh the revenues generated by any
agricultural lease of the Encina Property or any other use permitted under Proposition A
or Proposition C. How does the City justify imposing the disproportionate burden of this
cost on SDG&E's ratepayers? How does the City justify the probable impact of such
restrictions and/or litigation on the provision of essential public utilities to the public?
Answer: This argument discusses the public policy argument that the Initiatives create
an unreasonable burden on public utility ratepayers. This argument is essentially a policy
argument and not a legal argument.
Question 10: This question focuses on two specific sections in the Strawberry Fields
Initiative, Sections 3.4 and 3.14, which do not amend the General Plan, but require the
City Council to make amendments in the future to be consistent with the Initiative
Measure. The language in the Initiative Measure creates several situations in which the
Council must amend language in the General Plan, Zoning Code and specific plans for
the City. The Initiative redefines "Coastal Agriculture" and eliminates the General Plan
policy, found in various Elements, by eliminating the transition to a more urbanized
landscape. Under Section 3, No. 4 requires that the Vision, Introduction, Land Use, Open
Space and Conservation Elements be amended in an unspecified manner to adopt the
following policy:
Eliminate the presumption that agricultural policies are intended to
support the agricultural activities while planning for possible future
transition to more urban uses and instead establishes coastal
agriculture in the vicinity of Agua Hedionda Lagoon and its
connection Flower Fields as preserving special conservation
Initiatives as continued coastal agricultural production.
This section is typical of the substantive provisions of the Initiative. It mandates that
various elements of the General Plan be amended without specific language being
targeted or referenced. This act of amending the General Plan in various undefined
locations will also require the City Council to amend inconsistent zoning ordinances,
specific plans and other City policies including the Local Coastal Plan's land use plan.
This method of amendment raises questions as to whether or not the Initiative unlawfully
controls future legislative acts (Marblehead v. City of San Clemente (1991) 226 Cal.
App.3d 1504). In Marblehead, a land use Initiative was invalidated for directing the City
Council to amend various portions of a general plan and zoning ordinance to comply with
the general concepts in the Initiative.
Since the Marblehead decision, a San Diego County case was decided which deals with
language that amended a general plan with direction to amend certain sections of the
County' s plans and policies (Pala Band of Mission Indians v. Board of Supervisors
(1997) 54 Cal. App. 41 565). In the Pala case, the Initiative amended various portions of
the general plan and directed the County to "make all necessary amendments to
ordinances, rules, and regulations, General Plan, sub-regional and community plans, and
the Zoning Ordinance." (Pala Band of Mission Indians v. Board of Supervisors, at p.572).
In upholding the Initiative, the Fourth District Court of Appeals addressed the
requirement that the Board of Supervisors amend certain laws to comply with Initiative
as follows:
Sections 7C and 7D merely tell the County to enact any necessary
amendments to ensure the General Plan amendment will take place.
Such enabling legislation promotes, rather than violates, the
requirement that a General Plan reflect an integrated and consistent
document. Further, on this record, there is no basis to believe that
any amendment to the General Plan would be necessary since there
is no evidence Proposition C creates an inconsistency in the plan.
(54 Cal. App. 4th at p. 577).
Here the Initiative Measure requires future legislative steps to be taken. The Initiative
amends three separate elements of the General Plan that primarily deal with land use
issues. It also changes the vision of the City's General Plan.
The Marblehead and Pala cases seem to conflict. In Marblehead, one distinction was
that the City Council was directed to make the changes proposed by the Initiative. The
San Clemente Initiative (Marblehead) did not specifically state that the General Plan was
amended by the Initiative. It directed the City Council to take that step. In the Pala case,
the Initiative did state that it was amending the General Plan, but went on to direct further
amendments of the General Plan and lesser policies and laws. This distinction is one of
degree and this Initiative seems to fit closer to the Pala model. The Strawberry Fields
Initiative contains directives to the City Council to enact new laws consistent with a
general policy direction. Here the City Council is required to take a number of steps to
prevent this Initiative from violating certain legal requirements. Those steps would be
necessary to implement the Initiative and if the Pala model were followed, the Initiative
would not illegally bind future City Councils.
Sempra Energy Marie Lewis
Counsel
Sempra Energy
10! Ash Street
HQ11B
San Diego, CA 9210*
Tel: (619) 699-5049
Fax: (6)9) 699-5189
mlewis®sempra.com
July 13,2006
Ronald R. Ball
City Attorney
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, California 92008
Re: Proposed Initiatives Entitled "Save the Strawberry and Flower Growing Fields
Act of 2006 " and "T7ie Flower Fields, Strawberry Fields, Open Space and Public
Trails Protection Act of 2006 "
Dear Mr. Ball:
As you know, San Diego Gas & Electric Company ("SDG&E") owns a parcel of real
property comprising approximately 257 acres located north of Cannon Drive in Carlsbad,
California (the "Property"). Currently there are two proposed initiatives being considered for
inclusion in the November ballot in the City of Carlsbad (the "City") that could potentially affect
the Property: "Save the Strawberry and Flower Growing Fields Act of 2006", sponsored by The .
Concerned Citizens of Carlsbad ("Proposition A"), and "The Flower Fields, Strawberry Fields,
Open Space and Public Trails Protection Act of 2006", sponsored by the City ("Proposition C").
SDG&E believes that both Proposition A and Proposition C (as currently drafted) present
numerous legal issues that would have to be resolved before either Proposition A or Proposition
C could be implemented. SDG&E respectfully suggests that the City should carefully consider
the potential economic impact on the City and its residents of resolving such legal issues in
determining the City's future course of action with respect to the Property.
First, SDG&E asserts that the provisions of Proposition A and Proposition C (as currently
drafted) purporting to regulate or restrict utility activities on the Property would be
unenforceable, because the City lacks jurisdiction to regulate or restrict utility activities that are
governed by thg^California Public Utilities Comrnission (the "CPUC"). In addition, SDG&E
believes that the provisionsui f reposition C (as currently drafted) purporting to require SDG&E
to make portions of the Property available for public uses that primarily benefit the City and its
residents would work to cause a categorical taking in violation of SDG&E's constitutional rights.
SDG&E notes that any attempt by the City to appropriate portions of the Property for public
_uses, as reflected in Proposition C, would raise the question of whether the City's moTfve in
sponsoring Proposition C was to depress the value of the Property in order to facilitate the City's
acquisition of such portions of the Property at a reduced price. If so, the enactment of
Page 2
Proposition C would be an arbitrary and discriminatory act in excess of the City's police power
and would therefore be invalid as a violation of SDG&E's constitutional equal protection and
due process rights. Moreover, SDG&E believes that the provisions of Proposition A and
Proposition C (as currently drafted) purporting to require SDG&E to continue the current
agricultural operations at the Property would work to cause a categorical taking or, alternatively,
a regulatory taking, in violation of SDG&E's constitutional rights.
Further, SDG&E believes that there are strong arguments that the enactment of
Proposition A or Proposition C would violate SDG&E's constitutional equal protection and due
process rights, because they were initiated with the specific purpose of defeating Lennar
Communities' proposed development of the Property and attempt to restrict the use of the
Property to coastal agriculture without adequate consideration of appropriate planning or land
use criteria. Moreover, SDG&E believes that the enactment of Proposition A or Proposition C
would violate SDG&E's constitutional equal protection and due process rights, because it would
single out the Property for uses that are considerably more restrictive than the surrounding areas,
i.e., "spot zoning". Next, SDG&E believes that certain elements of Proposition A and
Proposition C (as currently drafted) would be unenforceable, because they are inconsistent with
the Agua_Hedignda Land Use Plan^the "Land Use Plan") and are therefore preempted. Finally,
^•SDG&E believes"that cerfaTrTelernents of Proposition A would constitute attempts to control
future legislative acts, and would therefore be invalid as acts in excess of the electorate's
initiative power.
SDG&E believes that if either Proposition A or Proposition C (as currently drafted) were
to be enacted, the result would be to substantially impair the value of the Property without
adequate compensation to SDG&E or its ratepayers and to impose disproportionate burdens on
SDG&E and its ratepayers that should more appropriately be borne by the City and its residents.
SDG&E has regulatory obligations to its ratepayers to use principles of good stewardship to
protect the value of its assets for the benefit of its ratepayers and to prevent its ratepayers from
being subjected to disproportionate burdens that do not provide any corresponding benefits to the
ratepayers, but rather provide significant benefits, at no cost, to third parties. As demonstrated
below, numerous bases exist upon which SDG&E may challenge the enactment of Proposition A
or Proposition C. SDG&E hereby informs the City that SDG&E intends to vigorously resist, by
all available means, any action by the City that would threaten to prevent SDG&E from meeting
its obligations to its ratepayers.
As stated above, SDG&E wishes to reiterate that the City has no jurisdiction to restrict
utility activities within the Property, by initiative or otherwise. Proposition A appears to attempt
to restrict SDG&E's utility activities to the "existing utility transmission corridors". See
Proposition A, Section 3.10. Likewise, Proposition C (as currently drafted) purports to change
the zoning designation of the Property from "Public Utility" or "P-U" to "Open Space" or "OS".
See Proposition C, Section 4.1. it is a fundamental principle, however, that the City cannot
regulate or restrict utility activities that are governed by the CPUC. See San Diego Gas &
Electric Company v. Superior Court, 13 Cal. 14 893 (1996); see also Southern California Gas
Company v. City ofVernon, 41 Cal. App. 4th 209 (1995).
Page 3
As you may recall, the City and SDG&E previously litigated this issue in San Diego Gas
& Electric Company v. City of Carlsbad. In that case, the City argued that the City had the
power to regulate where SDG&E deposited sand dredged in connection with the operation of the
Enema power plant, which SDG&E owned at the time. See San Diego Gas & Electric Company,
64 Cal. App. 4th 785, 800 (1998). The California Court of Appeal, Fourth Appellate District,
found that the City had no power to regulate where the sand was deposited, because the City has
no jurisdiction to regulate utility activities that are governed by the CPUC. See id. at 803. The
Court of Appeal emphasized that under the California Constitution, Article XII, Section 8, a city,
county or other public body may not regulate matters over which the California Legislature
grants regulatory power to the CPUC. See id. at 794. Accordingly, SDG&E has the right to
conduct any utility activities within the Property, as long as such activities comply with the
CPUC's rules and regulations, and the City has no jurisdiction to regulate or restrict SDG&E's
utility activities within the Property. In light of the settled nature of the law in this area, and the
legal fees and liabilities that could result, SDG&E believes that the City should carefully
reconsider any attempt to do so.
SDG&E also wishes to make clear to the City that the City cannot, by initiative or
otherwise, take utility property from SDG&E and its ratepayers for the purpose of creating
public uses that primarily benefit the City and its residents without paying adequate
compensation to SDG&E and its ratepayers. Proposition C (as currently drafted) purports to
amend the land use entitlements applicable to the Property to incorporate public trails, pedestrian
access and other public uses within the Property. See Proposition C, Section 2.3. More
specifically, Proposition C purports to modify the Land Use Element, Section II, of the Carlsbad
General Plan (the "General Plan") to state, among other things, that the Property lacks adequate
public access and public use areas for the benefit of the Carlsbad community and that public
trails and park, recreation and public gathering areas within the Property would enhance the
Carlsbad community. See Proposition C, Section 3.1. Proposition C purports to further modify
the Land Use Element, Section III, of the General Plan to include public trails, public parks,
recreation facilities and a civic center in the permitted uses of the Property. See Proposition C,
Section 3.3. Finally, Proposition C authorizes the Carlsbad City Council (the "City Council") to
expend city funds to develop public trails within the Property.1 See Proposition C, Section 6.1.
These provisions evidence a clear intent by the City to take portions of the Property for public
recreation and civic uses without adequate compensation to SDG&E and its ratepayers,
effectively requiring SDG&E and its ratepayers to subsidize public uses that primarily benefit
the City and its residents.
It is well-established that such a physical invasion of the Property by the City would
constitute a taking without adequate compensation jn_vioiation of the United States Constitution
and the California ConstitationT"'3'<?e United 'States Constitution, Fifth Amendment; see also
California Constitution, Article I, Section 19. The United States Supreme Court has long held
that where a government regulation compels a property owner to suffer a physical invasion of his
1 SDG&E notes that Proposition A hints at the same purpose, purporting to amend the
Land Use Element, Section II, of the General Plan to refer to the future transition of the Property
to community parks. See Section Proposition A, Section 3.11.
Page 4
property without adequate compensation, a taking has occurred, no matter how minute the
intrusion, and no matter how weighty the public purpose behind it. See Lucas v. South Carolina
Coastal Council, 112 S. Ct. 2886, 2893 (1987). in Nollan v. California Coastal Commission, for
instance, the United States Supreme Court expressly stated that if the State of California, acting
through the California Coastal Commission, had required the plaintiffs, owners of a beachfront
lot in Ventura County, to make an easement across their beachfront available to the public in
order to increase public access to the beach, there would clearly have been a taking. See Nollan,
107 S. Ct. 3141, 3145 (1987). Neither SDG&E nor its residents has any legal obligation to
donate any portion of the Property to the City for the purpose of creating public trails, park and
recreation areas and civic facilities that primarily benefit the City and its residents, and in fact
any attempt by the City to impose such a burden on SDG&E and its ratepayers would constitute
a clear violation of SDG&E's constitutional rights. SDG&E has no intention of voluntarily
allowing the City to so appropriate the Property for public uses without adequate compensation.
Again, in light of the settled nature of the law in this area, and the legal fees and liabilities that
could result, SDG&E believes that the City should carefully reconsider any attempt to do so.
SDG&E notes that any attempted appropriation of portions of the Property for public
uses pursuant to Proposition C (as currently drafted) would raise the question of whether the
City's true motive is to depress the value of the Property, so that the City may acquire portions of
the Property for public uses at a lower price. A land use regulation may not deprive a property
owner of equal protection under the law. See United States Constitution, Fourteenth
Amendment; see also California Constitution, Article I, Section 7. Likewise, a land use
regulation may not deprive a person of property without due process of law. See United Staled
Constitution, Fourteenth Amendment; see also California Constitution, Article I, Section 7.
Although the police power accords local governments broad discretion in enacting land use
regulations, the power of the local government to interfere with the rights of a property owner
are not unlimited. See Longtin 's California Land Use, Second Edition, Section 1.30[2] and
l.30[3]. If the attempted exercise of power by a land use regulation is unreasonable or arbitrary,
then regulation violates the property owner's constitutional equal protection and due process
rights, and is therefore invalid. See id.
In Kissinger v. City of Los Angeles, the California Court of Appeal, Second Appellate
District, found that an ordinance enacted by the City of Los Angeles rezoning a parcel of
property from R-3 (multiple dwellings) to R-l (single-family residential) was unreasonable and
arbitrary, and therefore an invalid exercise of the city's police power, because it appeared that
the city's true motive was to prevent improvement of the property to permit the city to acquire
the property by condemnation for a lower price in connection with the city's airport expansion
project. See Kissinger, 161 Cal. App. 2d 454, 462 (1958). In reaching this conclusion, the Court
of Appeal emphasized that "[a] zoning ordinance may not be used as a device to take property
for public use without the payment of compensation." See id. SDG&E respectfully requests that
the City examine whether the City's true motive for sponsoring Proposition C is to depress the
value of the Property to reduce the cost to the City of acquiring portions of the Property for civic
uses. If so, then the enactment of Proposition C would be an invalid exercise of the City's police
power.
Pages
Moreover, SDG&E believes that there is a very strong argument that the other significant
elements of Proposition A and Proposition C (as currently drafted) would work to cause a
categorical taking of the Property, because they would deny to SDG&E all economically viable
uses of the Property. Both Proposition A and Proposition C (as currently drafted) purport to
downgrade the designation in the General Plan of the portion of the Property that is currently
designated as "Travel/Recreation Commercial Use" or "TR" to "Open Space" or "OS".2 See
Proposition A, Section 3.14, and Proposition C, Section 3.4. Proposition A does not stop there,
but goes on to amend the Land Use Element, Section III, of the General Plan to single out the
area along the south shore of the Agua Hedionda Lagoon and require SDG&E to continue
agriculture production in that area, regardless of economic viability. See Proposition A, Section
3.12 and Section 3.13. In fact, the entire thrust of Proposition A is to impose the heavy burden
on SDG&E of continuing agricultural operations that SDG&E some time ago determined are no
longer economically viable.3 See Proposition A, Section 2. /, Section 3.2, Section 3.3, Section
3.6, Section 3.7, Section 3.8, Section 3.9, Section 3.10, Section 3.11 and Section 3.15. Similarly,
Proposition C amends the Land Use Element, Section II and Section III, of the General Plan to
require SDG&E to continue the existing agricultural operations. See 3.1 and Section 3.3.
The takings clauses of the United States Constitution and the California Constitution are
violated when a land use regulation denies a property owner all economically viable use of its
land. See Lucas, 112 S. Ct. at 813; see also Twain Harte Associates, Limited v. County of
Tolumne, 217 Cal. App. 3d 71, 81 (1990). Regulations that deny a property owner all
economically viable use of his land constitute one of the discrete categories of regulatory
deprivations that require compensation without any case-specific inquiry into the public interest
advanced in support of the restraint. See Lucas, 112 S. Ct. at SI2. Here, Proposition A and
Proposition C (as currently drafted) arbitrarily require SDG&E to continue agricultural
operations that SDG&E some time ago determined not to be economically viable. SDG&E notes
that Proposition A, in particular, goes further than merely including agricultural operations as
one of tins permissible uses of the Property, but actually purports to require that SDG&E
continue the current agricultural operations on the Property. The burden on SDG&E and its
ratepayers of maintaining the current agricultural operations is especially heavy given the
substantial cost of maintaining and preserving the Agua Hedionda Lagoon, a cost that should
more rightfully be borne by the City and its residents. In light of these circumstances, SDG&E
hereby asserts that, by denying to SDG&E all economically viable use of the Property, the
enactment of Proposition A or Proposition C would constitute a categorical taking of the
Property in violation of SDG&E's constitutional rights.
Even if the City were to assert that the enactment of Proposition A or Proposition C
would not deny to SDG&E all economically viable use of the Property (an assertion that
2 SDG&E notes that Proposition C purports to downgrade the land use designation of the
"TR" portion of the Property, notwithstanding the City's previous assurances to the contrary.
' SDG&E notes that the term of the farm license under which current agricultural
operations are conducted expired some time ago, and SDG&E has permitted the agricultural
operations to continue solely on a month-to-month basis.
Page 6
SDG&E vehemently denies), SDG&E believes that the enactment of Proposition A or
Proposition C would also constitute a regulatory taking of the Property, because of the severe
economic impact that would result. A court may determine that a land use regulation that does
not deny to a property owner all economically viable use of its land nevertheless constitutes a
taking if, after conducting an ad hoc factual inquiry, the court determines that the land use
regulation has an unduly harsh impact on the property owner's use of its land. See Penn Central
Transportation Company v. New York City. 98 S. Ct. 2646, 2659 (1978). A land use regulation
may constitute a taking requiring compensation to the property owner if the extent to which it
deprives the owner of economic use of the property suggests that the regulation has unfairly
singled out the property owner to bear a burden that should be borne by the public as a whole.
See Yee v. Escondido, 112 S. Ct. 1522 1530 (1992); see also County ofAlameda v. Superior
Court, 113 Cal. App. 4th 558, 566 (2005). In reaching its determination, the court must weigh
the public and private interests. See id. Some of the factors that have been considered by
California courts include whether the government is acquiring resources to facilitate uniquely
public functions, whether the regulation permits the property owner to profit and obtain a
reasonable return on investment, whether the regulation provides the property owner benefits
that mitigate whatever financial burdens the law has imposed and whether the regulation
prevents the best use of the land. See Kavanau v. Santa Monica Rent Control Board, 16 Cal. 4th
761, 775-76 (1997).
Applying these factors to the situation at hand, there is a strong argument that the
enactment of Proposition A or Proposition C (as currently drafted) would cause a regulatory
taking of the Property. As discussed above, Proposition A and Proposition C would require
SDG&E to continue agricultural operations that are not an economically viable use of the
Property. In addition, Proposition C, in particular, would at the same time require SDG&E to
make portions of the Property available for public uses that primarily benefit the City and its
residents. If Proposition A or Proposition C were to be passed, SDG&E would be required to
continue the agricultural operations, notwithstanding the fact that the revenues from such
operations cannot offset the burden of maintaining and preserving the Agua Hedionda Lagoon,
the cost of which should more rightfully be borne by the City and its residents. Neither
Proposition A nor Proposition C would permit SDG&E to profit or obtain a reasonable return on
its investment in the Property, given the costs of maintaining and preserving the Agua Hedionda
Lagoon, and neither Proposition A nor Proposition C provide any benefits that mitigate this
heavy burden. Likewise, there is no question that agricultural production is not the best use of
the land. In fact, there has been no study, evaluation or analysis of whether agricultural
production is a beneficial (or even harmless) use of the land. Upon weighing these factors, it
appears that both Proposition A and Proposition C indeed single out SDG&E and its ratepayers
to bear a burden that should more rightfully be borne by the public as a whole. As stated above,
SDG&E has an obligation to its ratepayers to resist any attempt by the City to take the Property
without adequate compensation, and the City should take into account the legal fees and
liabilities that could result from enacting any amendment to the General Plan that amounts to a
regulatory taking.4
While the City may argue that any regulatory taking claim would not be ripe for
adjudication, SDG&E believes otherwise. A property owner may pursue a regulatory taking
Page 7
Further, SDG&E believes that the enactment of Proposition A or Proposition C would be
subject to a legal challenge as arbitrary and discriminatory, and therefore an invalid exercise of
the City's police power, because both Proposition A and Proposition C were initiated with the
specific purpose of defeating Lennar Communities' proposed development of the Property and
attempt to restrict the use of the Property to coastal agriculture without adequate consideration of
appropriate planning or land use criteria. As stated above, a land use regulation cannot deprive a
property owner of equal protection under the law or deprive a property owner of property
without due process of law. The usual test when a land use regulation is attacked as being in
excess of the police power is whether the regulation bears a substantial and reasonable
relationship to the public welfare. See Arnel Development Company v. City of Costa Mesa, 126
Cal. App. 3d 330, 336 (1981). However, the principle limiting judicial inquiry into the
legislative body's police power objectives does not bar scrutiny of whether there has been
discrimination against a particular parcel of land, and the courts may properly inquire as to
whether the scheme of classification has been applied fairly and impartially in each instance. See
id. Legislative purpose is a factor to be considered in determining whether a land use regulation
is invalid as discriminatory. See id. at 336. This is true even if the subject regulation was
enacted by initiative. See id. at 337. In Arnel, the California Court of Appeal, Fourth Appellate
District, invalidated an ordinance enacted by initiative that rezoned a parcel of property as
single-family residential, because the Court of Appeal found that the ordinance was arbitrary,
since it was enacted without consideration of appropriate planning or land use criteria, and that
the ordinance was discriminatory, since it was enacted for the sole purpose of defeating a
specific planned development that had a multi-family residential component. See id.
Here, the Concerned Citizens of Carlsbad or the City would not have sponsored
Proposition A or Proposition C if Lennar Communities had not proposed to develop the
Property. Their discriminatory intent is further evidenced by the fact that both Proposition A and
Proposition C apply only to the property that was proposed to be included in the Lennar
Communities development. In fact, it has been suggested that one of the underlying motives of
claim without exhausting administrative remedies if the property owner can show that pursuing
such administrative remedies would be futile. See Ogo Associates v. City ofTorrance, 37 Cal.
App. 3d 830, 834 (1974). In Ogo Associates, the City ofTorrance rezoned a parcel of property in
response to the property owner's application for approval of a development project. See id. In
holding that the property owner was not required to pursue administrative remedies prior to
invoking the jurisdiction of the courts, the California Court of Appeal, Second Appellate
Division, stated that "[I.]t is inconceivable the city council would grant a variance for the very
project whose prospective existence brought about the enactment of re/oning.. ..To require
appellants to apply to the city council for a variance on behalf of this project would be to require
them to pump oil from a dry hole...." See id. at 834. Here, both Proposition A and Proposition
C were initiated in response to Lennar Communities' proposed development of the Property. In
light of the City's stated goals of preventing any commercial, industrial or residential
development of the Property, it would be futile for SDG&E to submit any other development
proposals to the City for approval. Accordingly, SDG&E believes that the regulatory taking
claim would be ripe for review if Proposition A or Proposition C were to be enacted.
Pages
Proposition A is to eliminate development options For the Property and, consequently, put the
development agenda of an alleged financial contributor to Proposition A in a more favorable
position, surely not a permissible legislative motive. In addition, Proposition A, in particular,
purports to create a new land use designation for the Property, "Coastal Agriculture", without
any study, evaluation or analysis of whether coastal agriculture is a beneficial (or even harmless)
use of the Property. Accordingly, the enactment of Proposition A or Proposition C would be
vulnerable to an attack as arbitrary and unreasonable, and therefore an invalid exercise of the
City's police power.
Similarly, SDG&E believes that the enactment of Proposition A or Proposition C would
be subject to a legal challenge as arbitrary and discriminatory, and therefore an invalid exercise
of the City's police power, because Proposition A and Proposition C would constitute "spot
zoning" by singling out the Property for a land use designation that is considerably more
restrictive than the surrounding property. As stated above, a land use regulation violates a
property owner's constitutional rights of equal protection and due process, and is therefore
invalid, if it is arbitrary and discriminatory. Spot zoning, which occurs when a small parcel of
property is restricted and given fewer rights than the surrounding property, is a blatant example
of discriminatory land use regulation. See Ross v. City ofYorba Linda, I Cal. App. 4th 954, 960
(1991). A city by a land use ordinance cannot unfairly discriminate against a particular parcel of
land. See id. In Ross, the California Court of Appeal, Fourth Appellate District, invalidated a
zoning ordinance that imposed a one-acre lot restriction on a parcel of property that was
surrounded by smaller-sized parcels. See id. at 961. Although the City ofYorba Linda argued
that there was a rational basis for the land use designation, i.e., preventing encroaching
urbanization, the Court of Appeal rejected that argument, stating that "the prevention of
'urbanization' cannot be a rational basis where 'urbanization' has already taken place." See id.
Here, the Property is surrounded by other parcels of property that are zoned for
commercial, industrial or residential development, and the restriction of the use of the Property
to agricultural production would be inconsistent with the character of the surrounding property.
Singling out the Property for permanent agricultural uses would create an "island" in a "sea" of
less restrictive zoning, a result that was rejected by the California Supreme Court in Hamer v.
Town of Ross. See Hamer, 59 Cal. 2d 776, 782 (1963). In fact, both the General Plan and the
Land Use Plan contemplated that the character of the area would gradually transition to more
urban uses. See. e.g., Carlsbad General Plan, Land Use Element, Section !1(D)(5) and Agua
Hedionda Land Use Plan, Section 1.10. The fact that the enactment of Proposition A or
Proposition C would constitute invalid "spot zoning" is yet another basis upon which SDG&E
may challenge the City's proposed actions with respect to the Property.
The City should take into account the potential legal fees and liabilities that could be
incurred by the City and its residents arising from other legal challenges to Proposition A or
Proposition C as well. For instance, SDG&E believes that certain elements of Proposition A and
Proposition C (as currently drafted) are inconsistent with the Land Use Plan applicable to the
Property, and would therefore be invalid. The general principles governing state statutory
preemption of local land use regulation are well settled. See Longtin 's California Land Use,
Second Edition. 2003 Update, Section 1.71. A county or city may make and enforce a land use
Page 9
regulation only to the extent that it is not in conflict with state general law. See California
Constitution, Article XI, Section 7, Any local land use regulation that is conflict with state
general law is void. See Longtin, Section 1.71.
Both Proposition A and Proposition C (as currently drafted) purport to downgrade the
designation in the General Plan of the portion of the Property that is currently designated as
"Travel/Recreation Commercial Use" or "TR" to "Open Space" or "OS". See Proposition A,
Section 3.14, and Proposition C, Section 3.4, This directly conflicts with the Land Use Plan,
however, which specifically states that such portion of the Property is to be designated as "Travel
Services" or "TS". See Agua Hedionda Land Use Plan, Article HI, Section 1.10. It also conflicts
with one of the basic goals of the Land Use Plan, to assure priority with coastal-dependent
development, see id., Article II, Section 2, and the Coastal Act, which gives priority to visitor-
serving uses close to the coast, see California Public Resources Code Section 30255. Moreover,
as stated above, both Proposition A and Proposition C would require SDG&E to continue the
current agricultural operations at the Property. One of the basic policies of the Land Use Plan is
to protect environmentally sensitive habitat areas and to prevent impacts that would degrade such
areas. See Agua Hedionda Land Use Plan, Article HI, Section 3. There has been no study,
evaluation or analysis, however, of the impact that continuing such agricultural operations could
have on the Agua Hedionda Lagoon. Accordingly, SDG&E hereby asserts that these elements of
Proposition A and Proposition C, if enacted, would be invalid because they are preempted by the
Land Use Plan and the Coastal Act.
SDG&E also believes that certain elements of Proposition A, if enacted, would constitute
attempts to control future legislative acts, and would therefore be invalid as acts in excess of the
electorate's initiative power. An initiative that seeks to do something other than enact a statute,
such as render an administrative decision, adjudicate a dispute or declare the views of the
resolving body by resolution, is not within the initiative power reserved by the people. See
Marblehead v. City of San Clemen te, 226 Cal. App. 3d 1504, 1509 (1991). In Marblehead, for
instance, the California Court of Appeal, Fourth Appellate Division, invalidated an initiative that
directed the city council to amend the city's general plan and zoning ordinances to reflect the
concepts contained in the initiative, which related to traffic control measures. See id. at 1510.
Here, Proposition A purports to define a new category of land use entitled "Coastal
Agriculture" and to establish a policy eliminating the transition of the area to more urban uses
and preserving coastal agricultural uses, and then directs the City Council to amend the General
Plan and zoning ordinances in an unspecified manner to conform to such policy. See generally,
Proposition A, Section 3 and Section 4. By doing so. Proposition A seeks to perform legislative
acts that are not reserved to the electorate. SDG&E hereby asserts that such elements of
Proposition A, if enacted, would be invalid because they constitute legislative acts in excess of
the electorate's initiative power.
As you can see from the foregoing analysis, SDG&E believes that the City's enactment
of Proposition A or Proposition C (as currently drafted) would give rise to numerous legal
challenges, the resolution of which would likely result in the imposition of substantial legal fees
and liabilities on the City and its residents. Among them, challenges relating to preemption by
Page 1O
the CPUC, constitutional categorical and regulatory takings claims, constitutional equal
protection and due process violations, and preemption by the California Coastal Commission.
SDG&E understands that the City Council has requested the preparation of a report under
California Elections Code Section 9212 (the "Report") to assess the potential economic impact
on the City and its residents of enacting Proposition A. SDG&E respectfully suggests that the
Report should assess the significant potential economic impact on the City and its residents that
could result from the above described legal challenges. California Government Code Section
6250 etseq.,
Pursuant to the California Public Records Act, SDG&E hereby requests (1) a copy of the
description of the scope of work submitted by the City to the preparer of the Report, (2) when the
Report is issued, a copy of the Report, together with all attachments, exhibits or supporting
documents, and (3) all correspondence, summaries or other documents related to the
development of Proposition C. See California Government Code Section 6250 et sec/.,
If you have any questions or comments, please feel free to contact me.
Sincerely,
Marie E. Lewis, Esq.
cc: Claude A. "Bud" Lewis, Mayor, City of Carlsbad
Matt Hall, City Council Member, City of Carlsbad
Ann J. Kulchin, City Council Member, City of Carlsbad
Mark Packard, City Council Member, City of Carlsbad
Norine Sigafoose, City Council Member, City of Carlsbad
Steven D. Davis, Senior Vice President - External Relations
.1. Bret Lane, Vice President - Environmental, Safety & Facilities
Eugene "Mitch" Mitchell, Regional Vice President External Affairs
1
IMPACTS OF PROPOSED IMPACTS OF PROPOSED
INITIATIVEINITIATIVE
Purpose of Elec.Code Purpose of Elec.Code §§9212 Reports9212 Reports
InitiativesInitiatives--Legislative Acts / General Legislative Acts / General
Plan & ZoningPlan & Zoning
2
Procedures Procedures leadingleading up to the voteup to the vote
1.1.CirculationCirculation
2. 2. City Clerk certificationCity Clerk certification
3.3.Elec. Code Elec. Code §§9212 reports9212 reports
4.4.Place on ballotPlace on ballot
5.5.VoteVote
Different than propertyDifferent than property--owner owner
application:application:
* Extensive staff review* Extensive staff review
* CEQA* CEQA
* Public hearings* Public hearings
3
Reports are a way to inform the Reports are a way to inform the
electorate in this abbreviated electorate in this abbreviated
process.process.
Landowner: can challengeLandowner: can challenge
prepre--electionelection
postpost--electionelection
What the Initiative does:What the Initiative does:
Amends the General Plan to establish Amends the General Plan to establish
the Coastal Agriculture designationthe Coastal Agriculture designation
Amends the vision, introduction, land Amends the vision, introduction, land
use, open space and conservation use, open space and conservation
elements to:elements to:
4
Add the designation of Coastal Add the designation of Coastal
AgricultureAgriculture
Eliminate the concept of potential Eliminate the concept of potential
development and recognition that development and recognition that
Carlsbad is an urbanizing CityCarlsbad is an urbanizing City
Adds approximately 45 acres east of Adds approximately 45 acres east of
II--5 between Agua Hedionda Lagoon 5 between Agua Hedionda Lagoon
and Cannon Road to the Coastal and Cannon Road to the Coastal designationdesignation
Eliminate the presumption that Eliminate the presumption that
agricultural policies are intended to agricultural policies are intended to
support agricultural activities while support agricultural activities while
planning for possible future transitionplanning for possible future transition
Eliminate potential future utility use Eliminate potential future utility use
of SDG&E except for transmission of SDG&E except for transmission
corridorscorridors
5
Conserve and insure agricultural Conserve and insure agricultural
production by whatever means production by whatever means
practicablepracticable
Effective date December 19, 2005Effective date December 19, 2005
Subsequent amendments only by Subsequent amendments only by
vote with exceptionsvote with exceptions
Highest majority vote of conflicting Highest majority vote of conflicting
ballot measuresballot measures
What the Initiative does not do:What the Initiative does not do:
––Amend LCPAmend LCP
––State its Environmental State its Environmental
ConsequencesConsequences
––State its Economic and Fiscal State its Economic and Fiscal
ConsequencesConsequences
6
Does not recognize HMPDoes not recognize HMP
Does not recognize CoastalDoes not recognize Coastal ActAct
Does not recognize California Does not recognize California Energy Commission or California Energy Commission or California PUC.PUC.
Subsequent Legislation RequiredSubsequent Legislation Required
––LCPALCPA
––Zoning OrdinanceZoning Ordinance
––Carlsbad Ranch S. P.Carlsbad Ranch S. P.
Implementation will require new criteria Implementation will require new criteria (i.e., Constitutional standards for land use (i.e., Constitutional standards for land use review) never adopted by other California review) never adopted by other California Cities. The implementation of this Cities. The implementation of this Initiative may take more time and Initiative may take more time and resources than any other land use resources than any other land use procedure ever implemented by the City procedure ever implemented by the City of Carlsbad.of Carlsbad.
May result in a taking of private property May result in a taking of private property rights and may have the economic rights and may have the economic impacts as described in the Fiscal Impact impacts as described in the Fiscal Impact Report.Report.
The complete text of the report is available at:The complete text of the report is available at:
www.ci.carlsbad.ca.uswww.ci.carlsbad.ca.us
1
FISCAL IMPACT REPORT
Save the Strawberry Growing
Fields Act of 2006
save the strawberry fields fiscal impact : 07/24/2006 : slide 2
THE SITE
• 12 Parcels
• 430 Acres
– 49.2 ac.(11%)
Tourist
Recreational
Commercial
– 381.1 ac. (89%)
Open Space
• 7 Owners
2
save the strawberry fields fiscal impact : 07/24/2006 : slide 3
KEY ISSUES
• Initiative removes development rights
– Downzoning of property
– Inability to rezone to other uses
• Some implications subject to interpretation and
discretionary actions
• Burden on City to enforce
• Potential of short and long term impacts
save the strawberry fields fiscal impact : 07/24/2006 : slide 4
SCOPE OF ANALYSIS
• “Opportunity Cost” to City
– What would the City lose without permitted
development?
– Costs to implement initiative
– Ongoing budgetary impacts
• Infrastructure funding
• Potential jobs lost
• Redevelopment impacts
3
save the strawberry fields fiscal impact : 07/24/2006 : slide 5
ASSUMPTIONS
• “Reasonable case” scenario
– Evaluated build out as currently permitted
– Less than 25% developed
• TR Site (NEC of Cannon Rd & I-5)
– 463,000 sf commercial (including hotel alternative)
• 9 Hole Golf Course Extension
save the strawberry fields fiscal impact : 07/24/2006 : slide 6
FINDINGS
• One time costs: $28.5 to $36.5 million
– Possible acquisition costs
– Infrastructure funding (net)
– Implementation costs
• Annual impacts: $2.8 to $3.0 million
• Job losses: 902 to 926 permanent jobs
4
save the strawberry fields fiscal impact : 07/24/2006 : slide 7
ONE-TIME COSTS
$ 36,534,000$ 28,484,000TOTAL
-542,000-542,000Savings on HUB Park Trail Improvements
700,000700,000Acquisition & Relocation of AHLF Discovery Center
7,226,0007,226,000Development Fee Losses
12,800,0006,400,000Acquisition of Other Non-City Owned Parcels
6,200,0006,200,000Acquisition of Parcels 4, 10 and 11
9,900,0008,400,000Acquisition of Parcel 1
$ 250,000$ 100,000Update Local Codes and Ordinances
High RangeLow RangeOne-Time and Implementation Costs
save the strawberry fields fiscal impact : 07/24/2006 : slide 8
ANNUAL IMPACT
Potentially Significant
$ 2,977,000$ 2,802,000TOTAL ALL FUNDS (ANNUALLY)
33,0000Assessment Revenue
33,0000Carlsbad Tourism BID
729,000704,000Net Housing & Nonhousing Tax Increment
$ 729,000$ 704,000Redevelopment Agency
Less: Costs to Maintain Agricultural Operations
(3,000)(3,000)Less: Direct General Fund Expenditures
57,00069,000Business License Revenue
493,0000Transient Occupancy Tax Revenue
1,601,0001,966,000Sales Tax Revenue
67,00066,000Property Tax Revenue
$ 2,215,000$ 2,098,000City General Fund
With HotelWithout HotelAnnual Fiscal Impact of Development (at Build-Out)